The reason to make a lasting power of attorney is, of course, to nominate who should make decisions about your finances and your health and care when you have lost mental capacity to do so for yourself.
In order to guide your helpers, you can use the forms to record what decisions you would make if you had the choice now. There are two sections.
In the Preferences section, you state what you would like to happen if possible. Your preferences are not legally binding on your helpers. They should bear them in mind, but if there is a difficult choice to make and the best option seems to be one that doesn’t fit your preferences, they can decide on it.
By contrast, in the Instructions section you state what your helpers must do. Instructions are legally binding and if your helpers do not abide by them, anyone else can challenge their decision in the Court of Protection.
Preferences and instructions at first sound like a good idea. They give you, the person making the LPA, varying levels of control over what happens in the future. They give helpers all important guidance so that they can be assured that when difficult decisions need to be made, they are making ones with which you would agree. They can help prevent other people from questioning whether the helpers are acting in your best interests. And they can prevent a helper from acting in a way that you would not want.
However, instructions in particular can also present problems that render your LPA useless and prevent you from receiving a beneficial outcome.
We don’t know what the future holds. We can hope for the best, but it makes sense to plan for the worst.
Because instructions must be followed, if there is ever a situation where helpers need to make a difficult choice between two outcomes, both of which are bad, but one is worse than the other, instructions may prevent them from choosing the slightly less worse one.
What is bad is subjective of course, but you are likely to have nominated helpers who have a similar outlook on life as you and therefore have similar subjective views.
As an example, you may be married and both you and your husband have lost mental capacity. For both of you, your attorneys are you two adult children. When you made your LPA, you gave the instruction that you and your husband must continue living together. Your husband has a minor accident where he breaks his wrist. It isn’t life threatening, but it does mean that the assisted living arrangement you currently have isn’t suitable – at least while he recovers – because he is unable to move from his bed or chair without help. There is a very good full time care home near to where your children live which will accept him. But it only has one place, and you don’t qualify for it in any case. It is also likely to be filled quickly given the high reputation of the care at the home. Your husband’s LPA prevents your children from moving him there because both your LPAs state that you must live together. The next best home that will take both of you is an hour’s drive from your children’s homes, less well reviewed and more expensive. It doesn’t have the physiotherapy clinic that the other has, so the chances are that both you and your husband will have to stay much longer in full time care. Returning to assisted living is less likely.
A second example is that you might have made an instruction that each of your grandchildren should receive £1,000 per year if he or she studies at a university, including the three children of your son, with whom you did not see eye to eye and who is not an attorney. Because some took gap years, all five of your grandchildren are at university when you need unforeseen care. However, with the £5,000 a year being paid to the grandchildren, there is not enough for a treatment that could let you have full mobility for another couple of years. Your son’s view is that the grandchildren were always more important to you than your own care (as proved by your instruction) and that the choice you would have made would be to give them money over the option to improve your quality of life. His view, of course, doesn’t matter, except that he threatens to take your daughter, the sole attorney, to court if she doesn’t transfer the money to his children.
Your instructions cannot be overturned, except by a judge in the Court of Protection. Applying for them to be overturned is expensive, but more so, time consuming. It is likely that it will be too late to rectify a situation that requires an instruction to be overturned.
So should you give preferences and instructions?
Preferences are not legally binding. They can be useful to helpers. So there is no reason you shouldn’t make them. Recording them in your LPA might not be the best place to do so for a number of reasons:
your preferences may change over time – mental capacity isn’t suddenly lost – so you may lose the ability to make certain decisions, but be able to express your views on others quite clearly. Or you may make your LPA long before you lose capacity, and in the meantime your wishes may change.
the LPA form has limited space
once registered, your LPA is fixed, unless you apply to have it overturned. You want to register your LPA immediately after making it, because unless registered, it doesn’t confer power to your attorneys and you could lose capacity at any time through an accident.
some people you may not want to see your wishes may be able to do so on the LPA form
The Net Lawman solution is to create a separate side letter, which we call a statement of wishes, and reference it in your LPA. You can update your statement of wishes at any time, and it remains private. Of course, it can be any length and go into as much depth as you like about certain topics. For example, if a new healthcare treatment comes out, you can update your statement of wishes to say whether you would be keen to receive a trial or not.
Because instructions are legally binding, and because there are consequences that you may not foresee, we recommend that you give none.
Instead, leave preferences through a statement of wishes, discuss your wishes well in advance with your attorneys and choose attorneys who you trust to carry out the best decisions for you based on your preferences.
You may feel that not leaving instructions reduces your control of what happens in the future to you. However, not leaving any is likely to increase, not reduce, the options your helpers have to care for you.
Making an LPA
Net Lawman has created a lasting power of attorney service. You can create both types of LPA online for free, and for a small fee, have a professional will writer look over the forms to check that they reflect your wishes and will be registered without delay by the Office of the Public Guardian.