What Decisions can an LPA make?

What Decisions can an LPA make?

Here I answer the question: “what decisions can an LPA make” (i.e. an appointed attorney)? Broadly, powers granted by an LPA are far reaching, however, they are constrained, not only by law but by the rights of other interested parties.

  • Attorneys have wide ranging powers to step into the shoes of a donor
  • Attorneys must act in the best interests of the donor, a calculation which is not trivial.
  • Attorneys’ powers interact with the donor’s rights/obligations as well as those of third parties.

 

Firstly, we have to be clear that there are two Lasting Power of Attorney (LPA) documents, one deals with Health and Welfare matters and one with Property and Financial affairs. Different attorneys may be appointed by each, and each document may constrain the decision-making power of the other.

There are intuitive “divisions of labour” between the two LPAs, however, also areas in which the line is blurred. Where costs are involved, health decisions may have implications for financial and vice-versa.

The best interests test introduces additional constraints, which may be more nuanced than immediately apparent. Taking the Health and Welfare document, attorneys are required to act in the donor’s best interests in the context of their values and beliefs.

Powers nominally include: decisions about the donor’s place of residence; medical treatments; personal care; life sustaining treatments etc.

If, however, an attorney disagrees with e.g. a GP, on a treatment for the donor, (subject to proper discussion) the GP may apply to the courts to act in the best interests of the donor. Courts are slow and GPs may deliver treatments while decisions are made. Thus, the decision of the attorney may be overruled.

With respect powers conferred by a Property and Finance LPA, powers nominally include: purchase/sale of Property; home maintenance; management of tax, bills and benefits etc. (for clarity, attorneys may not amend wills or take on trustee roles for a donor).

Once again, the best interests test may result in surprising complexity. Personally, circumstances in which donors assert that attorneys should make certain gifts on their behalf e.g. to charities or relatives, are entirely reasonable. Where wording is poor, however, and gifts mandated to the detriment of the donor, LPAs have been known to fail altogether.

Even greater complexity may arise where the donor has an interest or senior role in a business. In such circumstances, their role (e.g. a directorship) may demand them to act contrary to personal interests, in those of a company. In such situations it is not uncommon for donors to register multiple Property and Finance LPAs. Here, the powers of one attorney are not implicitly subordinate to those of another and negotiation must take place to avoid becoming stuck.

The picture that emerges, when one considers the decision-making powers of LPA appointed attorneys is one of a network of interacting and overlapping powers and obligations, aimed not only at upholding the rights of the LPA donor as a citizen, but at integrating their freedoms and responsibilities with the interests of those with whom they interact.

Lasting powers of attorney are often pivotal to quality of life. If you don’t know where to start, my advice is: start!

If you’re considering these issues, I urge you to act now, speak to our client advice team on 0121 202 4714 or click here and we’ll call you.

Does an LPA override a will?

Does an LPA override a will?

Asking ‘does an LPA override a will’, represents something of a ‘category error’, by which I mean that the two documents are not designed to be active at the same time, so would not usually conflict (at least directly).

 

  • The LPA is used in life and a will is used in death.
  • Notwithstanding, attorneys have far reaching powers and may impact gifts by a will.
  • A Living Will is a separate document to a will, which should be integrated with an LPA.

 

An LPA (Lasting Power of Attorney) is a power of attorney given by an individual (known as a ‘donor’), to those they trust (known as ‘attorneys’), so that the latter may act on their behalf, in the event they cannot (or do not wish to). This may be when the donor loses mental capacity or, if the document is so drafted (and not relating to health matters), on instruction by the donor e.g. if they are overseas.

A will is a document which directs a person’s assets on death (this is different to a ‘living will, which applies in life and may interact with an LPA’). The person making a will is known as a ‘testator/testatrix’ and those acting for them an ‘executor/executrix’.

The two documents are wholly different in ambit, one’s dealing with affairs in life and one in death. As such their use should not overlap. For the avoidance of doubt, an attorney appointed by an LPA, whilst having ranging powers to ‘step into the shoes’ of the donor, is not permitted to make alterations to their will. Notwithstanding, the actions of an attorney may have far reaching consequences for the effect of a will.

Unless otherwise stipulated, an attorney appointed under and LPA may access the donor’s will. The attorney may be charged with managing financial and welfare matters for the donor. This will almost certainly entail paying for goods and services. Furthermore, it’s worth noting here, that LPAs are most usually in effect during late life, a period which might prove the most expensive with respect to a person’s care.

With the above in mind, the attorney is likely in a position to determine the amount spent on care, and from which of the donor’s resources these costs are funded. In the context of decisions around residential care, which can run to over £100,000/year, these decisions might radically affect the overall size of gifts made by the donor’s will. Moreover, where a will makes, for example, specific gifts, or gifts of property e.g. “I leave the contents of bank account 12345676, to John Smith”, the actions of an attorney in applying resources to which these gifts relate, might disproportionately affect certain beneficiaries of a will.

In advising clients on the creation of LPAs I am careful to emphasise the fact that attorneys have far reaching powers and act in a manner that is largely unpoliced. These documents mat be infinitely preferable to the pursuit of deputyships through the courts, however, it is crucial that the attorneys are trusted to act with absolute integrity by the donor.

As a point of clarification, it is worth mentioning the ‘Living Will’ or ‘Advance Decision’. This is a document that is quite different from the will itself, giving as it does instruction on how the maker is to be treated (medically) in certain situations (e.g. persistent unconsciousness). These documents necessarily override LPAs, and care should be taken to properly account for them at drafting stage.

LPAs are extremely important documents; they take a long time to complete and errors/rejections are common. The vast majority of those making them appoint professionals to do so. If you would like to discuss creating LPAs, please visit Confidence Wills at – www.confidencewills.co.uk

Can GP overrule power of attorney?

Can GP overrule power of attorney?

This question (“Can GP overrule power of attorney?”), may be informed by two further questions: 1. “is the person who gave the Power of Attorney, capable of making the decision themselves” and 2. “is the decision in the best interests of that person”?

  • Attorneys must act in the best interests of donors.
  • Attorneys may not decide death is in the best interests of a donor.
  • Health and Welfare LPAs may only be used when a donor lacks mental capacity.

Lasting Powers of Attorney (“LPAs”) are documents which allow individuals to grant powers, in advance, to those that they trust, to act on their behalf, should they lose the mental capacity to do so.

The person making the LPA i.e. giving the powers, is called the “donor”. The person acting on their behalf is called “the attorney”.

There are two types of LPA: the first (the Property and Finance LPA) deals with financial matters and the second (The Health and Welfare LPA), with matters relating to health. We will assume, for the purposes of answering the above question, that it refers to a health and welfare decision made, under a Health and Welfare LPA.

Decisions made by an attorney under a Health and Welfare LPA: 1. Can only be made when the donor lacks mental capacity and 2. Must be made in the best interests of the donor, Mental Capacity Act (2005).

This brings us to a situation in which a GP may challenge an attorney’s right to make a decision, under a Health and Welfare LPA.

If, in the view of the GP, a donor has the capacity to make a decision themselves, it would be a very brave and/or foolhardy attorney that didn’t give serious consideration to the objection.

The Mental Capacity Act (2005) emphasises (Health and Welfare) LPAs’ use as a decision-making tool of last resort. A person is to be assumed to have capacity, unless it is established otherwise. Moreover, assumptions about capacity must not be made superficially on the bases of behaviours or appearance. Further, consideration should be given as to whether the person may gain the capacity, to make such decisions, in the future, and whether the decision in question can be delayed until then.

A GP may be integral to decisions around mental capacity. That is not to say the GP’s position should not be challenged, if an attorney feels that they are right.

A GP may also seek to overrule a decision relating to treatment, made by an attorney, on the basis that it is not in the best interests of the donor.

Attorneys may be given authority to make decisions around life sustaining treatments by a Health and Welfare LPA (this is not always the case). If so, these decisions must be made in the donor’s best interests (and critically not motivated by a desire to bring about the donor’s death). They must further take into account the wishes of the donor (and any named thereby), and refuse treatments that they are instructed to, by the LPA itself.

If a GP disagrees with the attorney’s decision, then they may overrule on the basis of a successful application to the Court of Protection. They must first discuss the decision with the attorney and seek a second opinion. While the court considers the matter, medics may administer treatments to prevent the donor dying or their condition worsening.

 

 

With the above in mind, it’s easy to see how a poorly drafted LPA can lead to conflict and delay around key decisions.  You should talk to a professional before creating these documents. Visit www.confidencewills.co.uk to find out more.