10 Mistakes People Make With a Lasting Power of Attorney
Why Good Intentions Are Not Enough
A Lasting Power of Attorney is not a difficult document to create. The forms are easy to access, people manage the process online, and many complete them without professional help.
That accessibility is, in part, the problem.
Because the process feels straightforward, the decisions behind it often receive less attention than they deserve. The result is an LPA that is legally valid but practically flawed — one that creates confusion, conflict or legal difficulty at exactly the moment when clarity is most needed.
These are the ten mistakes that arise most often.
Mistake 1: Waiting Until It Is Too Late
A Lasting Power of Attorney can only be created by a person who has mental capacity. That sounds obvious. But the practical consequence is frequently overlooked.
Capacity can be lost suddenly — through a stroke, an accident or a rapid deterioration in health. Once lost, it cannot be recovered for the purposes of creating an LPA. The window for planning has closed.
What happens then is more complicated and significantly more expensive. A family member or other interested party must apply to the Court of Protection for a deputyship order. The process typically takes many months and involves ongoing court supervision, annual reporting requirements and recurring fees. The deputy appointed may not be the person the individual would have chosen.
An LPA created while capacity exists — even decades before it might be needed — avoids this entirely. The cost of waiting is disproportionate to the cost of acting.
Mistake 2: Appointing the Wrong Attorney
The choice of attorney is the most important decision in the LPA, and it is the one most often made on the basis of familiarity rather than suitability.
Appointing a spouse, an eldest child or a close friend is natural. It is not always right.
A Property and Financial Affairs attorney will have full legal authority over bank accounts, investments, property and income. A Health and Welfare attorney will make decisions about care, treatment and, if specified, life-sustaining measures. These are significant responsibilities that require not only trustworthiness but practical competence, emotional resilience and the ability to act impartially under pressure.
Attorneys also carry legal duties — including, for financial attorneys, obligations under the Trustee Act 2000 in relation to investment management. Our Attorney Guidance on Investment Management sets out what those duties require in practice.
The right attorney is someone who combines trust, capability and availability — not necessarily the person who is most closely connected.
Mistake 3: Not Appointing Replacement Attorneys
An LPA is only as resilient as the attorneys named within it.
If an original attorney dies, loses their own mental capacity, becomes bankrupt — which automatically disqualifies them from acting under a financial LPA — or simply becomes unable or unwilling to continue, what happens next depends entirely on whether a replacement has been named.
Without replacements, the LPA may become inoperable at precisely the moment it is most relied upon. Naming at least one replacement attorney is a straightforward step at the drafting stage. Addressing it afterwards is considerably more difficult.
Mistake 4: Giving Attorneys No Guidance
The LPA grants authority. It does not explain how that authority should be used.
Without guidance, attorneys are left to make their own judgements about matters that may be far from straightforward: how investments should be managed and what risk tolerance; whether and how family members should be financially supported; what care arrangements should be prioritised; how the donor's home should be treated.
Guidance can be incorporated into the LPA itself as instructions or preferences or provided separately as a letter of wishes. Either approach gives attorneys a meaningful framework for decision-making and reduces the likelihood of disagreement among family members about whether an attorney is acting appropriately.
Attorneys managing investments also have specific compliance obligations. Our Attorney Checklist on Investment Management Compliance provides a practical reference for attorneys taking on that responsibility.
Mistake 5: Making Instructions Too Restrictive
The opposite problem also exists.
Some donors, understandably concerned about how their affairs will be managed, include instructions in their LPA that are so specific or so limiting that the attorney cannot act effectively in practice.
An LPA that requires attorneys to seek approval from multiple parties before making routine financial decisions, or that imposes conditions that cannot realistically be met in day-to-day circumstances, may be worse than no guidance at all. In some cases, overly restrictive drafting can render an LPA unregistrable.
Instructions should be clear and meaningful without being so detailed that they obstruct the practical operation of the document.
Mistake 6: Ignoring Digital Assets
Digital assets now form a material part of many people's financial and personal lives. They are also one of the areas most commonly overlooked in LPA planning.
Digital assets may include online banking and investment accounts, cryptocurrency holdings, share trading platforms, business email accounts, cloud-stored documents and files, domain names and websites, and subscription services with recurring financial commitments.
Some platforms have restrictive terms of service that complicate access even for a person acting under a registered LPA. Identifying what digital assets exist, where they are held, how they are accessed, and what attorneys should do with them before the LPA is needed avoids making them practically inaccessible.
Mistake 7: Delaying Registration
An LPA must be registered with the Office of the Public Guardian before it can be used. Registration is not automatic and is not immediate.
The current registration process takes several weeks under normal conditions. If registration has not been completed before an attorney is needed to act, there will be a period — potentially a significant one — during which no one has the legal authority to manage the donor's affairs.
The sensible approach is to register the LPA promptly after it has been signed and witnessed, rather than setting it aside and waiting until it appears to be needed. A registered LPA that is never used causes no harm. An unregistered LPA at the point of urgent need causes real difficulty.
Mistake 8: Failing to Prepare Certified Copies
Banks, investment platforms, healthcare providers and other organisations will generally require sight of the LPA before accepting instructions from an attorney. Presenting the original document repeatedly carries the obvious risk of loss or damage.
Certified copies — produced either by a solicitor or by the Office of the Public Guardian — carry the same legal authority as the original and can be provided to multiple organisations simultaneously. It is also worth noting that the OPG operates an online register that allows institutions to verify a registered LPA digitally, which some organisations now use as a matter of course.
Having a small number of certified copies prepared when the LPA is registered is straightforward and avoids practical difficulties later.
Mistake 9: Attorneys Not Understanding Their Legal Duties
Accepting an appointment as an attorney is not a formality. It carries genuine legal responsibility.
Attorneys must act in the donor's best interests at all times. They must keep the donor's finances entirely separate from their own. They must keep clear records of decisions made and actions taken. Under a financial LPA, they are subject to investment management duties under the Trustee Act 2000, including the obligation to consider diversification, apply appropriate criteria when managing investments, and, in many cases, take professional advice.
Many attorneys are unaware of the extent of these obligations. Lack of awareness is not a defence against a formal complaint to the Office of the Public Guardian or, in serious cases, legal action for breach of duty.
Attorneys benefit from understanding their responsibilities clearly before they begin to act.
Mistake 10: Treating an LPA as a Form Rather Than a Decision
This underlies most of the mistakes above.
An LPA is not a form to be completed. It is a set of legally binding decisions about who will hold authority over some of the most important aspects of your life – and how they will use it.
The form is accessible by design so that the process does not require professional involvement if it is not wanted. But accessibility does not mean that the underlying decisions are simple. They require careful thought; honest reflection on the people being appointed and the circumstances they may face; and — in many cases — professional guidance to ensure that they are completed correctly right.
An LPA completed quickly and without sufficient consideration may be legally valid. It may still fail when it matters most.
Related Guides
The following resources expand on several of the issues raised above:
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7 Questions to Ask Before Creating an LPA — the key decisions to work through before you draft the document.
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Attorney Guidance on Investment Management — what the law requires of attorneys who manage financial assets.
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Attorney Checklist on Investment Management Compliance — a practical reference for attorneys taking on investment responsibilities.
If you would like to discuss your own arrangements, the team at Wills, Tax & Trusts Ltd. is here to help.
Speak With Our Team
If you would like to discuss your own LPA arrangements, or review provisions already in place, the team at Wills, Tax & Trusts Ltd. is available to help.