A Lasting Power of Attorney (LPA) can give a person(s) quite a lot of authority over part of another person’s life, and so for this reason when a client is making an LPA they need to ensure they give complete clarity in their instructions and preferences.
An LPA 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.
In summary this is a written document which is signed with a number of formalities and creates a binding obligation once it has been signed.
An LPA must be completed using the specific form designed for that purpose and must be registered with the Office of the Public Guardian (OPG) all of which BTWC handle on behalf of your client.
A key part of the form is the ‘Preference and Instructions’ section. This is the part of the form where a donor can tell their attorneys how they would prefer them to make decisions, or where instructions can be given as to what they MUST do.
The form tells you that this is optional but we highly recommend that clients carefully consider this section and add in any specific details. The more clarity given then the better for both the client (donor) and the attorney.
Being an attorney can be a huge responsibility, especially if that person is also a family member or friend and they also have emotional attachments.
An attorney is required, by law, to act in the best interests of the donor and this means giving a large amount of consideration to the incapacitated person’s values, wishes, feelings and beliefs. That is why writing these down and making things more explicit can be hugely valuable.
LPAs are powerful documents and ones that should have a lot of thought put into them. The attorneys may effectively have to end up managing key decisions about a person’s life when that individual no longer has capacity, and make impactful life-changing decisions, and there are times when an attorney can possibly find this overwhelming.
The donor being clear on their wishes can help alleviate some of the pressure or concern. If the attorney has some direction and steer in how things are to be handled then that helps give confidence and creates a smoother process for all involved.
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 donor wants them to do.
Property & Financial Affairs LPA - considerations
If your client is making a Property & Financial Affairs LPA then it may be prudent for them to make a note of the following information to help just in case in the future:
- Create a list of any financial institutions they have accounts or dealings with. Do they have an accountant? Are those details available?
- Do the family/friends know that you are the client’s financial adviser/accountant/estate planner? You may wish to include your details.
- For the client to outline their preferences for their financial affairs, so if they wish to donate to a charity, then for this to be made clear for example. Or if they wish to ensure a family member has access to an account.
- It’s important to consider the terminology used – is it a preference or a clear ‘must do’ instruction?
This type of LPA can be quite clear cut, especially if preferences and instructions are made known for all to see. This can avoid any possible disagreement with other family members. The attorney needs to remember their legal obligation to ensure all finances are handled appropriately and always in the best interest of the donor.
Health and Welfare LPA - considerations
This LPA can often be much more emotionally challenging for an Attorney, particularly if they are a family member or friend. This document is used when the donor no longer has mental capacity to make the right and best decisions for their own health and welfare.
It becomes the attorney’s legal obligation to assess and review options in line with any instructions or preferences indicated in the LPA document. This is why it can be so important to give full clarification any express wishes by the donor.
When discussing this section with a client, it can be useful to consider the following:
- Would they move into care in the future if need be?
- Do they have any current health issues that need to be considered?
- Are there any religious aspects to be considered?
- What sort of medical treatment would they accept?
- Do they have an existing advance decision?
- Are they happy to be prescribed medication?
If the client wishes to capture a number of instructions they can do so in a side letter. This is a separate document to the LPA and can contain all these instructions and preferences. But it needs to be remembered that a side letter is not a legal document, like an LPA is, so any express instructions should appear in the LPA itself.
Much more than a document
An LPA is much more than a document. It can potentially impact someone’s’ life dramatically, and it’s important your clients understand this, so they can see the worth of creating an LPA in the first place. If specific wishes have been expressed by a client, then a conversation about capturing those in a legal manner should be had.
Needing an LPA can be triggered by a number of different things, from seeing a loved one go through health issues and having their decisions taken away from them, to being affected by dementia and seeing someone lose capacity even to the current circumstances of the pandemic where our own health and future may be at the forefront of more minds.