A Lasting Power of Attorney (LPA) is a document by which a person can appoint named individual/s to 'step into their shoes' to handle their affairs for them. The LPA is a legal document and the person/s appointed to deal with the affairs is known as the 'Attorney'. The person making the appointment is called the 'Donor' and must be 18 or over and have the ability to make their own decisions when they sign. There are two types of LPA, one dealing with health and welfare and one dealing property and finance. A person can choose to make one type or both.
It is only possible for an LPA to be used by the Attorney/s as and when it is registered with the Office of the Public Guardian (OPG). In either type of LPA the Donor can impose restrictions on their Attorney/s or conditions which have to be met prior to the document being used.
One reason that many people give for not making an LPA is that they will lose control over their affairs and do not want to be 'railroaded' by a family member who may be appointed as Attorney, however well-meaning the Attorney may be.
In a recent interesting case the Court of Protection declared that the Donor had a right to impose some very complex conditions.
In the case the Donor was a wealthy individual in his seventies who owned properties in a number of countries. He appointed three Attorneys but felt very strongly that he did not want to lose control of his own affairs. Accordingly, he instructed his solicitors to draft very comprehensive conditions which had to be met prior to the Attorneys being able to act under the terms of the LPA. These conditions were very extensive and complicated. One of the conditions was that the Attorneys could not make a decision for him unless they reasonably believed that he lacked capacity and that two psychiatrists agreed. Even in this case the Attorneys could not act for him until 60 days had passed since his loss of capacity (except in certain circumstances) and the Donor appointed a longstanding friend with power to overrule the psychiatrists' certification of his loss of capacity.
The idea of such extensive conditions was to stop the Attorneys from being able to take hasty action during temporary incapacity.
The firm who drafted the LPA submitted it to the OPG for registration. The OPG refused to register it on the basis that the conditions imposed an unreasonable fetter on the Attorney's power to act and were therefore ineffective as part of an LPA. As a result of this the Donor applied to the Court of Protection for a declaration that the LPA was valid as drafted and to order the Public Guardian to register it.
The Court of Protection agreed with the Donor's views. The fact that the conditions attached to an LPA were practical or difficult to put into effect did not render the LPA ineffective.
The Court also observed that the OPG had no right to make a 'paternalistic' judgement on behalf of the Donor.
Whilst this is a case which is specific on its own facts it is important for you to consider whether you wish to impose conditions on your Attorney when making an LPA. It is fair to say that in recent years the Government has tried to encourage people to prepare their own LPAs. This case is a good illustration of the importance of taking detailed legal advice and having your LPA professionally drafted.
To discuss this or other issues relating to Powers of Attorney contact us.
Internet link: GOV.UK power of attorney