Failure to prepare Powers of Attorney: The 10 Pitfalls

Lasting Powers of Attorney are documents which are often overlooked until the time comes when they are needed. In many cases, this is often too late.

This article hopes to offer some insight into the pitfalls of failing to prepare Lasting Powers of Attorney and the process that will arise should you require assistance in the future with no Powers of Attorney in place.

1. Application to COP
If you do not have a Lasting Power of Attorney and require assistance, an application to the Court of Protection will be necessary.
2. Costly
The cost of applications to the Court is, on average, 3 times more than the cost of preparing Lasting Powers of Attorney. The costs can further escalate if the Court decides a hearing is required.
3. Challenging to get general Health and Welfare Orders
With regards to Health and Welfare, the Court is reluctant to issue Deputyship orders relating to the entirety of an individual’s health and welfare decisions, instead, issuing orders specific to distinct decisions. This can cause delays if decisions need to be made, as specific applications must be made to the Court for permission to act on someone’s behalf.
4. Time Consuming
Quite often, it takes 4-6 months to obtain a Deputyship Order. This can give rise to complications and inconvenience particularly if decisions have to be made and you are not able to make them yourselves. On the other hand, Lasting Powers of Attorney take 3 months to be registered by the Court, but are valid indefinitely.
5. Ongoing supervision by the Court Of Protection supervisor
If a Deputy is appointed to act on your behalf, the Deputy will be supervised by the Court. A Court Visitor will visit at least once per year. The Court will charge a fee for such supervision, adding further cost to an already costly exercise.
6. Insurance bond requirements
In addition to supervision, the Court often insists on the purchase of an insurance bond to protect the finances of the person you’re a deputy for.
7. Persons you choose to look after you, may not necessarily be the deputy
Should an application be made on your behalf, the deputy appointed by the Court may not necessarily have been the person you would choose to look after you. Preparing Lasting Powers of Attorney eliminates this uncertainty and retains control of the appointment.
8. Increased Application fees
The Court application fee to apply for a Deputyship order is roughly £385, in comparison to the £82 per Lasting Power of Attorney document.
9. Requirements to submit deputyship accounts every year
As a deputy, you must keep copies of bank statements, contracts for services or tradespeople, receipts, letters and emails about your activities as a deputy. Each year, deputies must write a report explaining the decisions they have made as deputies, which include the reasons for your decision and how this was in the best interests of the person you’re a deputy for.
10. Complex application forms
An application to the Court for a Deputyship Order is more thorough in comparison to the preparation of Lasting Powers of Attorney. An application involves laying out in detail, the finances of the individual, details of family members, the involvement of the GP and notification of people connected to the application. This is a time consuming and labour-intensive process and one that is often overlooked.

For more information or to discuss the preparation of your Lasting Powers of Attorney, please do not hesitate to contact us.

This article was written by Hannah Kirkpatrick who is a Trainee Solicitor and David Chandra who is a Partner within our Private Client department.