Update on Lasting Powers of Attorney

The Public Guardian recently brought several test cases which highlight the importance of correctly drafting a Lasting Power of Attorney (LPA).

An LPA is a legal document that lets you as the donor appoint people to be your attorneys to help you make decisions or make decisions on your behalf if you lack the capacity. The donor can appoint one or more attorneys and can decide whether every decision must be made by all attorneys or can be made individually. Section 7 of the LPA allows the donor to state any “instructions” which the attorneys must follow and “preferences” which the attorneys should consider but do not have to follow.

The Court of Protection (the “Court”) makes decisions on financial or welfare matters for people who are unable to make decisions. In The Public Guardian v DA [2018] EWCOP 26, it considered LPAs containing instructions and preferences relating to assisted dying, and LPAs appointing multiple attorneys.

In relation to instructions and preferences, the Court decided that the part of the LPA directing the attorney to do something to help or actually end the donor's life is ineffective because the attorney would be committing a criminal offence. It also decided that to avoid uncertainty and confusion an instruction or preference about assisted dying is ineffective if it is conditional on the law being changed in the future. In addition, the Court held that even if a request is in the “preferences” section of the LPA it should be followed if its wording appears to be an instruction.

The Court also made several decisions regarding the appointment of multiple attorneys. It held that the only ways to appoint attorneys are jointly, jointly and severally, and jointly for some matters and severally in respect of others. Where the attorneys are appointed jointly for some matters and jointly and severally for others, the donor must identify the required joint decisions otherwise it will be assumed that the attorneys should act jointly. The LPA will not fail if there are inconsistent preferences as long as they do not restrict the powers of the attorneys, because preferences are merely guidance and do not necessarily have to be followed. It is also acceptable to require an attorney to obtain consent from a third party before acting, as this approach upholds the donor’s autonomy.

If you are thinking about making an LPA, you should consult a solicitor for guidance as your application may be returned by the Office of the Public Guardian if it is not completed correctly. This can cause unnecessary delays and difficulties if you need to help a loved one with withdrawing money from the bank or paying their utility bills and they are not able to do this themselves.