When a person is creating a Lasting Power of Attorney (LPA), there is more to consider than just the attorneys they are appointing. They may wish to consider if they have any wishes they would like their attorneys to act on or keep in mind while acting. This can be achieved by including instructions or preferences in the LPA itself. In this article, we will be looking at what instructions and preferences are.
Preferences are guidance and considerations for the attorneys. The attorneys are not legally bound to follow the guidance provided but they should bear them in mind. They may act against these wishes if they feel it would be in the donors best interest.
Examples of common preferences are to receive regular haircuts, or for the attorneys to approach a specific accountancy firm when dealing with the donors taxes. There are some wishes which are best left as preferences for practical reasons. For example, if the donor wishes the attorneys to use a specific accountancy firm, it’s advisable to include this as a preference. This allows the attorneys to see another firm if, for example, the preferred firm is no longer trading, or the attorneys believe them to be too costly.
When providing preferences in an LPA, care should be given as to how they are worded to ensure they are not interpreted as instructions as this could hold up the registration process.
Instructions are directions that the attorneys must follow when making decisions on behalf of the donor. This can include preventing the attorneys from making gifts or ensure the donor does not come into contact with certain foods due to allergies.
Care must be given when deciding on including instructions as these could restrict the attorney’s ability to make certain decisions. On the other hand, there are matters such a dietary requirements or allergies that should specifically be included in an LPA to ensure that any professionals involved, such as banks or doctors, are made aware, therefore protecting the donor. If an attorney fails to comply with an instruction, the 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.
Instructions and preferences are present in LPAs to both protect the donor and provide guidance to the attorneys. When LPAs are submitted for registration with the OPG, all instructions and preferences are reviewed to ensure they follow the Mental Capacity Act 2005 and that they will not restrict the attorneys from acting in the best interests of the donor. If the OPG interpret any instructions or preferences as 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.