The information below is based on a leaflet written and published by Bob Cullen ASWW to clear up common misconceptions about Lasting Power of Attorney. You may prefer to bookmark this page to read later.
You are also free to call the helpline to discuss any aspect of this information without obligation.
This booklet sets out to be informative and as helpful as a small booklet on a big subject can be. It is unlikely to answer every question you might have. Instead, it is designed to explain the principles behind Lasting Power of Attorney and the role of the attorneys which is to help the person appointing them to make a decision or to be as involved in the process as they are able.
There are rules and guidelines which are helpful to attorneys in providing a framework for them to act and which protect the interests of the person making the Lasting Power of Attorney. Decisions made by Attorneys should, as far as possible, be those the person would have made had they been able.
You can include instructions and preferences that reflect your personal views about how your affairs should be administered or how you want to be cared for. We all understand how important it is to have a Will but a Will isn’t for you; it’s for your beneficiaries. A Lasting Power of Attorney is very much for you.
This booklet is useful for anyone thinking of making a Lasting Power of Attorney or for anyone asked to be an Attorney.
Please read this booklet and if you have any questions just write them down and call our Helpline.
Bob Cullen has almost 30 years experience providing Wills, Trusts and Lasting Power of Attorney to the public and also through senior financial professionals.
He is a longstanding member of the Society of Will Writers and subscribes to the Society’s Code of Practice which includes continuous training and maintaining full professional indemnity insurance. Bob is a published author with articles in publications aimed at professional advisors.
A Lasting Power of Attorney (LPA) allows you to choose people to act in your best interests if you are unable to act for yourself. If you do not have a Lasting Power of Attorney and you lose mental capacity the following are just a selection of potential issues:
It is easy to think that this cannot be right but, sadly, it is and the above are just some of the issues. Also, your family would not have any authority over your health and welfare. This is especially important if you were to need residential care which is more likely if you lose capacity. The local authority could apply to the Court of Protection for a Deputyship which allows them to take control of your money and also health and welfare decisions.
Obviously you can’t wait until you lose mental capacity to make these arrangements because then it is too late and serious illness, accidents and even strokes happen to younger people too. On our website you will find videos at the bottom of the ‘LASTING POWER OF ATTORNEY’ page including a real case history which shows what commonly happens.
Bob Cullen has personal experience as an attorney for a family member enabling him to advise clients in a very practical way.
There are two types of Lasting Power of Attorney (LPA) in England and Wales, one for Property & Financial Affairs and one for Health & Welfare. There are important differences between the two. A Property & Financial Affairs LPA can be set up so attorneys can act prior to capacity being lost. However, while capacity is retained attorneys may only carry out specific instructions given by the Donor (person who has made the LPA). This is extremely useful if a person is physically frail, ill, out of the country or otherwise unable to do something that their attorneys could do on their behalf. If the LPA grants attorneys no authority until after capacity is lost then the LPA is less useful as physical infirmity alone can make an LPA very helpful.
However, attorneys in a Lasting Power of Attorney for Health & Welfare have no authority until capacity is lost. If capacity is regained (for example after a stroke) their authority ceases. Also, in a Health & Welfare LPA a decision must be made whether to grant authority in regard to life sustaining treatment.
Restrictions and directions can be included in both types of LPA but professional advice is needed because if the Public Guardian considers a restriction or direction unworkable it will be rejected. Professional Will Services have years of experience advising clients about all aspects of Lasting Powers of Attorney
Attorneys can be appointed so that they must always act together but this is not recommended unless there are overriding reasons to do that. The options are as follows:
Jointly: every decision must be made by all attorneys acting together and if any attorney becomes unable to act, dies or is declared bankrupt the LPA fails and is void because all appointed attorneys can no longer act together.
Jointly and Severally: attorneys may act either together or independently and if any attorney becomes unable to act then the authority of the remaining attorney or attorneys continues and the LPA is not void.
Jointly in some matters and Jointly and Severally in others: please bear in mind that the same restrictions apply as above so that where attorneys are appointed jointly in certain matters then the inability of one to act will result in the inability of any of them to act in those matters.
An example would be: “My attorneys must act jointly in relation to investments and may act Jointly and Severally in all other matters” but if one of your attorneys were to die, be declared bankrupt, lose mental capacity themselves then no investment decisions could be made.
Five Key Principles define the approach the law takes since the Mental Capacity Act 2005 and those principles are:
Any decision made for someone who lacks capacity must, by law, be made in their “best interest” (not just in the interests or for the convenience of the attorneys). This sounds reasonable but if something is law then it has to be properly defined otherwise it is difficult for anyone to be sure that they are acting lawfully.
For that reason the Mental Capacity Act, 2005 lays down rules which attorneys must follow when making a decision on behalf of someone who has lost capacity. Those acting under a Lasting Power of Attorney must act in accordance with the Key Principles already described and should bear in mind the following.
First of all, while it might be reasonable to assume that an attorney is safe in making any decision that is felt to be clearly in the best interests of the incapacitated individual you may be surprised to realise that attorneys must, by law, consider the attitudes and actions of the incapacitated individual.
While attorneys may think it is alright to simply do what they think is most sensible it is a breach of the Act to ignore the known wishes of the person they act for.
So “best interest” under the Mental Capacity Act means their personal wishes even if those wishes might be seen as unwise, eccentric or even unreasonable (please refer back to the third Key Principle).
Although there is no single definition of “best interests”, the Act gives a non-exhaustive checklist of things that must be considered when making a decision on behalf of the Donor. These include:
* The Donor’s known past or present wishes and feelings. It is therefore important that you communicate with the Donor, familiarise yourself and understand their wishes, feelings and views. This places the Donor at the centre of any decision being made on their behalf.
* Any views the Donor has expressed in the past that would help you to understand what their wishes and feelings might be. This might be things they have written down, said to other people, or how they may have behaved in similar circumstances in the past.
* The Donor’s beliefs or values, which might influence the decision. This might include religious beliefs, cultural background or moral views.
* Any other factors they would be likely to consider if they were able to do so.
* Family members, parents, carers and other relevant people who care for the Donor or are interested in the Donor’s welfare should be consulted if this is practical and appropriate.
* The possibility that the Donor may regain the ability to make their own decisions in the future through, for example, learning new skills or recovery from a stroke.
The service provided by Professional Will Services – about which this is a brief introduction – is designed to give clients and their attorneys the information and support they need to feel confident in setting up and working under a Lasting Power of Attorney. It is much more than a document preparation service. We even provide a special publication, unique to us, containing important information which acts as a reference guide.
In addition, clients and their attorneys have six months after completion of the process during which they have unlimited access to Bob Cullen by telephone and email. You may consult with us during this period, without further charge, in regard to any queries that may arise
You may well have questions after reading this booklet. Please feel free to contact me personally to discuss them or to enquire how to arrange Lasting Power of Attorney for yourself or a family member.
© Bob Cullen 2021 All Rights Reserved
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