What happened when we found Mum’s homemade Power of Attorney……

………Putting my mother into a care home was one of the hardest decisions I have ever had to make.  She was in her late 80s and until recently was very independent.  At the start of this year it was clear that she could no longer support herself and with her consent she moved to a care home. 

Thankfully Mum had the foresight to make an LPA (Lasting Power of Attorney).  I recall signing this document but could not remember whether she used a solicitor.  She said she had used an online DIY application pack and thought this was something she could do without legal help.

Unfortunately, this is where my troubles started. I saw that Mum had appointed both myself and my brother Brian to act jointly.    Neither myself, nor my brother are on speaking terms and when I asked Mum about our appointment she said she wanted to treat us equally.  

Realising that we were going to have to get along in order to look after Mum’s affairs, I bit the bullet and spoke to my brother.  Sadly my reception was less than warm and it appears neither of us can agree the best way forward.  I wanted to sell Mum’s home to fund her care fees – she has a small pension and some savings, but not enough to keep her for more than a year.  Brian on the other hand wanted the property retained regardless of Mum’s needs.  I really don’t think he understands what is at stake.

Thinking that I had to make headway – regardless of my brother’s feelings – I then took the LPA to Mum’s bank.  The personal banker told me that I could not make decisions for my mother without my brother as she had appointed us ‘Jointly’ – that is to say both of us have to act for our mother at each and every stage, no matter how small the decision e.g. even if it is to sign a cheque.

The banker said that Mum also ticked a box in the LPA saying that it could only be used if she had lost capacity.  He asked for a doctor’s report detailing her mental health.  He said it is likely this will be required each and every time we make decisions on Mum’s behalf – potentially each and every time I use the account.

At that juncture I was feeling very worried, so I took Mum’s LPA to a solicitor.   I asked the solicitor about my rather uncooperative brother and whether there is anything that can be done.  She advised that we should try to find some centre ground and consider our main duty – to act in our mother’s best interest.  She mentioned informal methods to resolve our dispute, but failing that our only option was to go to Court.  She told me of the time scale and procedure involved with the courts and I was simply horrified – I couldn’t believe that this is what Mum intended when she first made the LPA. 

We reviewed the LPA and the solicitor immediately spotted that it was faulty as my brother had signed his part before my mother.  Apparently there is an order for which the LPA must be signed.  Brian had also witnessed Mum’s signature which invalidated the entire document. 

The solicitor said that an LPA needs to be registered at the Office of the Public Guardian (OPG) before it can be used.   Mum’s LPA was unregistered but the solicitor said that it would be rejected by the OPG given these errors.  She said the LPA could not be amended and her advice was that we needed to start from scratch.

The solicitor offered a ‘home visit’ and saw my Mum in her care home.  Thankfully Mum still had the right level of mental capacity to make a new LPA.  The solicitor said that she had seen plenty of clients with faulty homemade LPAs and in many cases it was too late to put the matter right.  My message to all, is don’t rely on homemade LPAs.  There may be an initial cost saving, but this is completely wiped out when you take into account the time (and aggravation) involved in putting a faulty LPA right.  Had Mum sought legal advice from the outset, the costs and stress that I have gone through over the last few months could have been avoided.

Ben Holden Solicitor at Donnelly & Elliott says “All too often I see homemade LPAs and I can guarantee at least an error in each and every one.  The problem with the DIY element is that an LPA is simply treated as a ‘tick box’ exercise and not given the serious thought it deserves.  On the evidence above the forms are clearly not as straightforward as they may seem.   The law and the guidance on LPAs are lengthy and complex.   Tick the wrong box and your family could be hamstrung by your homemade effort for years to come”.

Making an LPA can cover very serious decisions such as selling your home, consent for medical treatment and deciding upon your care arrangements.  A lawyer will be qualified, trained and experienced to give you the right advice and ensure you have an LPA that is right for you.  The costs of putting a faulty homemade/DIY LPA right are always a multiple of the costs of having a professionally drawn LPA in the first place.

 About the Author

Ben Holden is a Solicitor, Director and Head of the Wills and Probate Department at Donnelly & Elliott Solicitors in Gosport.  He has over a decade of experience in dealing with elderly client matters.  Ben and his team pride themselves on taking the time to understand their clients’ needs whilst offering cost effective legal solutions. Ben is a member of the Society of Trust & Estate Practitioners and a full accredited member of Solicitors for the Elderly.

Date: September 2017 .Donnelly & Elliott Limited Solicitors|38 Stoke Road Gosport Hampshire PO12 1JG |02392 505 500| www.gosport-solicitors.co.ukImportant Note: The above information is for general guidance and in part forms the opinion of the author. It is based on the law as at the date of this note. It should not be relied upon in part or in whole as a substitute for independent legal advice.  If any of the issues raised in this article effect you please contact a member of our team.