In Lasting Power of Attorney documents, the donor can choose to place rules or guidance within the documents themselves to state exactly how they would like the attorneys to approach certain decisions should they lose the capacity to make decisions for themselves. This can be achieved on Section 7, Page 8 of each type of LPA under Instructions and Preferences.
Placing a preference into an LPA is a non-binding wish that the attorneys may consider when making decisions on behalf of the donor. An example of this could be; ‘I would like to donate £2 a month to Cancer Research UK’. When the attorneys are making any decisions regarding any preferences specified in the LPAs, they must consider if this is how the donor would act, and if this is in the best interest of the donor. If the attorneys deem such a decision is not in the best interest of the donor, they are under no obligation to act on the preference.
Placing an instruction into an LPA is a binding wish that the attorneys must adhere to at any time a decision is being made regarding any instructions in the LPA. An example of this could be; ‘my attorneys must ensure I am given only vegetarian food’. If an attorney fails to comply with an instruction, the Office of the Public Guardian (OPG) may launch an investigation against all appointed attorneys. The outcome of such an investigation can vary depending on the breach and the appointment of the attorneys.
Due to the nature of an instruction, the donor will need to carefully consider any instructions they would like to place into an LPA to ensure they would not be preventing their attorneys from acting in their best interests.
When an LPA is in the process of being registered, the OPG will review the instructions and preferences to determine if they follow the Mental Capacity Act 2005 and if this could prevent the attorneys from acting in the best interest of the donor at any time. If the OPG deem any points to be invalid, the registration process may be delayed as an application will be issued to the Court of Protection to sever these points from the LPA. An example of such an occurrence could be requesting the attorneys to consider the needs of others as well the donor.