Sue Brakell, our Private Client Solicitor with over 30 years’ experience flags up the dangers of DIY legal forms:
Over the past few years there has been a rapidly growing market for DIY legal forms that allow people to create legally binding documents through online tools and shop-bought kits. The latest documents to be marketed in this way are Lasting Powers of Attorney (LPAs), with the promotion of the online service launched via the Office of the Public Guardian (OPG).
A Lasting Power of Attorney is an incredibly powerful legal document that allows an individual (the “donor”) to choose one or more people to manage their affairs in the event that they can no longer do so themselves: thereby potentially handing over complete control over their property, money, medical treatment and even end of life wishes.
The perceived benefit of using the online service offered by the OPG, or other DIY methods, is of course a financial one, but against this needs to be weighed up the many pitfalls:
- Perhaps prime amongst these is the potential vulnerability of the potential donor. Naturally, many people considering making LPAs are at a time of life when they may be relying heavily on relatives to help them, and influenced by what they have to say – which may not always be in their own best interests. A good lawyer will always ensure that they see the client on his or her own, and make certain that their wishes were clearly understood before proceeding. They would also consider obtaining a doctor’s opinion on the question of capacity, and even asking doctors to sign LPAs if there is any doubt about whether clients fully understand the implications of the document they are signing. All of this is essential for the protection of the donor.
Of course, none of these safeguards exist if the form is simply completed online. The OPG can have no idea whether the donor of the LPA was being put under pressure to sign – or even actually signed it themselves! In extreme cases how can the OPG know that the donor was even aware that the LPA was being made, and that it is not being completed by an unscrupulous individual as a tool for financial abuse?
- It is also undeniably the case that, as one would expect from such an important document with such serious implications for all involved, the process of completing an LPA is a far from straightforward matter. An LPA comes with extensive guidance notes, but these can easily be misinterpreted or not fully understood at the best of times – and how much more so if the potential donor of the LPA has failing mental capacity!
The process for making an LPA is not actually completed until it has been registered at the OPG. A slight deviation from the correct method of completion can render the LPA null and void – which means that the entire form would have to be completed and submitted again. Not a task for the faint-hearted!
Over the years there have been several incarnations of Powers of Attorney as the powers that be try to make these documents as watertight and less open to abuse. Surely, the push towards the online completion of forms, let alone the possibility of introducing “digital” signatures, flies in the face of everything lawyers are taught as being in the best interest of their clients, and everything that has been learned over the years about the protection of the vulnerable.
There is no replacement for taking sound advice from an experienced professional. Yes, you will have to pay a fee, but that is nothing compared to what is at stake in taking one of the most important steps you will ever make.
Sue is a registered Member of Solicitors for the Elderly