By Heledd Wyn – 3rd September 2020
Hearings in the Court of Protection sometimes include consideration of Lasting Powers of Attorney (LPA). Did the person have capacity to grant the LPA? Do they have capacity to cancel it? Is the attorney acting in the person’s best interests? In this blog I consider the importance of LPAs as part of advance care planning, with particular focus on one part of the LPA form – the section on Instructions and Preferences.
The Mental Capacity Act 2005 introduced for the first time a provision for people to appoint someone of their choice to make health and welfare decisions for them if the time were to come when they were not able to make these decisions for themselves (ss. 9-14). This is the Health and Welfare Lasting Power of Attorney. There is separate provision for a Property and Financial Affairs Lasting Power of Attorney (which replaced the earlier Enduring Power of Attorney). More information about both the “Health and Welfare” and the “Property and Affairs” LPAs (and guidance about how to make one, including a telephone information line number) can be found on the government website here.
A power of attorney is a document that must be entered into as a deed under which one person (“the donor”) grants to the other person or people (“the attorney(s)”) the power to act on behalf of and in the name of the donor. Without getting too legally technical, a deed is a written document which is signed with a number of formalities and creates a binding obligation once it has been signed. This is important when considering creating and using Lasting Powers of Attorney as a deed, once signed can only be revoked by another separate deed.
An LPA must be completed using the specific form designed for that purpose (here) and must be registered with the Office of the Public Guardian (OPG). It is possible for members of the public to complete an LPA form online themselves, or there are solicitors specialising in this area who can help.
No matter how you choose to complete the LPA forms (whether online yourself, on a paper copy requested from the OPG, or with professional assistance) you will be asked to consider setting out your “Preferences and instructions”. This is the part of the form where you can tell your attorneys how you’d prefer them to make decisions, or where you instruct them as to what they MUST do. The form tells you that this is optional and that “Most people leave this page blank – you can just talk to your attorneys so they understand how you want them to make decisions for you”.
To my mind, this section is the most important part of this form!
Simply signing a piece of paper giving authority to another person is really not very useful. How is an attorney to know what you would like them to do when the time comes to make decisions? An attorney – whether they are family, friend or professional is required, by law, to act in the best interests of the “donor” (the person on whose behalf they are making decisions) and this means – amongst other things – giving great weight to the incapacitated person’s values, wishes, feelings and beliefs. Unless you wrote down what those were, it can be hard for the attorney to feel confident that they are doing a good job.
LPAs are not simply pieces of paper to be bandied around. They are powerful documents and ones that really should have a lot more thought put into them than simply slotting in names and addresses of those who have been persuaded that they can take on the mantle of managing the life of another adult who no longer has capacity when they have little concept of the difficult burden this can be. In fact, attorneys sometimes become “frozen” – overwhelmed by the responsibility of making potentially life-changing decisions for someone, perhaps having accepted the role of attorney without any appreciation of how difficult this can be, or not having adequately discussed or been informed about the person’s wishes.
By giving proper consideration to the section called “Preferences and instructions”, these documents can be infinitely more useful, providing support and information to the attorney about what the donee wants them to do.
Let us take each in turn and look at some of the questions that should be asked, the answers considered carefully & proper note made of them.
Property & Financial Affairs
Some things that you may want to consider are:
- Who is on your existing professional team? Think accountant, financial adviser, lawyers.
- Where are all your bank accounts/investments held? Do you have a neat ‘black book’? Or are you someone who keeps their financial affairs in total disarray – yet you know where everything is.
- Will your family know how to contact your financial adviser/solicitors/accountant? Do they have their contact details? Incidentally, I think it is a good idea to use the opportunity to ‘notify’ these people in the LPA form – that way there is always a record of the team & they can be tracked down much more easily.
- Do you have any particular views on investing; e.g. ethical investing? Will your attorneys know to honour these wishes?
Instructions will use the words such as “must”; essentially a command to your attorneys that they have to do something specific. Examples of “instructions” given in the OPG Guide include:
“My attorneys must send annual accounts to my brothers and sisters.”
“My attorneys must continue to donate to charities that I have supported or for which I have set up standing order payments.”
Preferences will use words such as “like” or “prefer”, and are intended much more as guidance to your attorneys what they might want to think about rather than being prescriptive. Examples of “preferences” given in the OPG Guide include:
“I prefer to invest in ethical funds.”
“I would like to maintain a minimum balance of £1,000 in my current account.”
Health and Welfare
This is possibly the most important section to complete as it allows you to discuss, consider and specify, key issues such:
- Where you might like to live in the future
- Who your attorneys should consult with when making decisions?
- What your current health is like – including any diagnosis and prognosis
- What medication you are taking that may affect decision making ability
- Whether you have hearing aids or glasses?
- Who is your existing GP, dentist and optician?
- What is your religion?
- What food and drink do you like/not like?
- What hobbies do you have?
- What sort of treatment would you accept or decline?
- Do you have an existing advance decision?
- Have you discussed your wishes about DNACPR with your GP/hospital consultant?
Examples of “instructions” given in the OPG Guide include:
“My attorneys must not decide I am to move into residential care unless, in my doctor’s opinion, I can no longer live independently.”
“My attorneys must ensure I am given only vegetarian food.”
Examples of “preferences” given in the OPG Guide include:
“I would like to take exercise at least three times a week whenever I am physically able to do so. Whether or not I am mobile, I would like to spend time outdoors at least once a day.”
“I’d like to be prescribed generic medicines where they are available.”
The possibilities here are endless, but there may be some things that are absolutely ‘set in stone’. If these things that are so important to you are not written down, how is anyone to know what they are in the future?
An alternative view?
If you are not sure that you are able to commit to these instructions or preferences – then you may want to consider a letter of wishes or a side letter. This is a separate document to the LPA and can contain all these instructions and preferences. However, unlike if they are included in the LPA itself, they are not legally binding. They should act as a guide to your attorneys and they may feel themselves morally obliged to pay attention to what you have set out. However, unlike something that is set out in the LPA (as part of the formal deed) these wishes could potentially be overridden.
What should I do?
Much will depend on your own views and whether you have strong views on things that you are sure will not change or whether you are someone who likes to ‘tinker’ with things as life moves on. If you are determined that something should or should not happen – then it should go in the LPA. If you want the flexibility, then put it into a side letter as you can then alter this as life changes. However, if you do take this option, make sure that your attorneys know where you have kept your letter of wishes – they are of little use separated from the LPA!
If you are very clear on how your attorneys should act, this would mean less ambiguity. Less ambiguity means fewer opportunities for (mis)interpretation of your wishes and feelings. Should your attorneys be called upon to explain their actions – either by the OPG or the Court of Protection, it will be much easier for them to simply point to the instructions and preferences you have set out. If there were ever any form of ambiguity or dispute, it is far better for all concerned to have a set of instructions and preferences to rely on rather than having to second guess someone’s wishes and feelings.
Heledd Wyn is Director and Head of Long-Term and Elderly Care at Gregg Latchams Solicitors providing full consultancy services relating to estate planning, long term care and asset protection. Heledd has experience in inheritance tax planning, NHS Continuing Health Care Funding and complex Court of Protection applications. She tweets @Heledd_Wyn