Watch out when drafting a Lasting Power of Attorney | Howells Solicitors

Watch out when drafting a Lasting Power of Attorney

A lasting power of attorney (“LPA”) is a legal document that lets you appoint one or more people (the ‘attorneys’) to help make decisions, or to make all decisions on your behalf.

There are two types of LPA: a Property and Financial Affairs Power and a Health and Welfare Power.

A LPA allows you to choose who has control over what happens to you if you have an accident or an illness and can’t make your own decisions (if you ‘lack mental capacity’).

A test case, The Public Guardian v DA (2018), was recently brought before the Court of Protection. This Court has jurisdiction over the property, financial affairs and personal welfare of people who lack mental capacity to make decisions for themselves.

The Public Guardian brought the case before the Court to seek clarification on the operation of LPA’s when multiple attorneys had been appointed but had restrictions placed on their decision making powers. The court was asked to determine whether the restrictions imposed were compatible with how the attorneys had been appointed. If not, there was a risk that the court could override the attorney’s powers and sever the restrictions.

The Court therefore decided that:
• The provisions in the Mental Capacity Act 2005 regarding the appointment of multiple attorneys are final. Any attempt to appoint the attorneys on a different basis would be unsuccessful;
• If a preference had been written (rather than a restriction) then this would not cause the LPA to fail; and
• A requirement for an attorney to obtain the consent of the third party before acting would not necessarily make the LPA invalid if it was consistent with respecting the donor’s autonomy.

This case highlights the need for anyone drafting a LPA to ensure that the provisions relating to any proposed preferences or instructions are compatible with the Mental Capacity Act 2005 so as to prevent the LPA from failing.

For further advice regarding LPA’s in general, please contact our Wills, Trusts and Probate team on 0114 249 6666.

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