LPA
Should I include preferences and instructions in my Lasting Power of Attorney (LPA)?
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Including preferences in your LPA gives your attorney helpful guidance and instructions on what they can do on your behalf.
Both types of Lasting Power of Attorney (LPA), health & welfare and property & financial affairs, have the option to put preferences and instructions for your attorneys to follow. But, what are instructions and preferences? And, how do you include them? Here, we explain.
What is a Preference in an LPA?
Preferences are things that you would like your attorneys to consider when making a decision on your behalf, but without legally binding them to do so. It is rather like a letter of wishes sitting with your will.
Does my attorney have to follow preferences under my LPA?
No! Your attorney’s are not bound to your expressed preferences, but they should bear them in mind. This is why it’s important you choose attorneys that you trust to take your wishes into account when looking after you under an LPA (whether health & welfare, or finances, or both).
What sort of preferences can I include under my LPA?
For example, you may have some preferences about where you live and would prefer being close to friends and family, or preferences regarding your personal hygiene such as having a haircut every month. In relation to your finances it maybe donating a minimum amount to charity.
Instructions & Preferences give similar peace of mind to letters of wishes with wills.
What are Instructions under an LPA?
Unlike preferences, Instructions must be followed by your attorneys and are mandatory statements.
What instructions can I include under my LPA?
For example, instructions regarding moving to a care home as you could be against it unless it’s the last resort and you can no longer live independently, or instructions to refuse blood transfusions or following a particular diet, if that’s something you feel strongly about.
What are third party investment instructions under an LPA?
You must include instructions if you have investments managed by a third party under a discretionary management scheme and you want those to continue, otherwise your attorneys will not have the power to give instructions on your behalf.
Can my attorney get paid under an LPA?
You must also include instructions if your attorneys are to get paid (particularly if they’re acting as professional attorneys).
Should I write preferences and instructions in my LPA?
A lot of people leave these sections blank as it is a common misconception that it’s good practice to avoid setting out any restrictions in case your LPAs get rejected by the Office of the Public Guardian (“OPG”), which will delay the registration.
Do the Office of the Public Guardian (OPG) block preferences and instructions?
If the OPG considers that a preference or instruction would be ineffective or would prevent the LPA from being valid (for example, a provision allowing the attorney to make gifts which go beyond the statutory restrictions, or a provision which permits the attorney to consent to a marriage on behalf of the donor), it must apply to the Court for it to be determined, and pending this, the donor has the option to make a new LPA.
Why might the OPG block instructions or preferences in an LPA?
In the majority of cases, the reason for rejection is that the preference or instruction goes against express statutory provisions, but this is avoidable if the provision is drafted appropriately by an expert!
Care needs to be taken particularly when setting out instructions, as these are legally binding and may have consequences that you may not foresee at the time of writing them.
What kind of preferences and instructions can I write in my LPA?
Some examples of provisions could be: –
- To prevent the attorneys from selling the donor’s house unless they’re no longer safe to remain in their home
- To prevent the attorneys from disposing of a particular item (particularly if it has been specifically given in the donor’s Will)
- A charging clause for the attorneys to get paid for their role. Generally, lay attorneys would not generally expect to be paid, but they can recover out-of-pocket expenses paid on the donor’s behalf. Professional attorneys need to be paid for their work and this must be specifically provided for in the LPA.
Help with Lasting Power of Attorney (LPA)?
If you need help with any aspect of Lasting Power of Attorney (LPA) please get in touch with our team of expert LPA solicitors. Please contact us using the details below.
very useful, thanks!
Super – thanks so much Sally. Best wishes – Team QLAW!
thank you for these guides as we have had a false allegation made to OPG against us allegedly by the donors biological mother whose interest only extends to his assets
I need to find out if he did specify instructions or preferences in his LPA which is did not know until I came across your website
Hi Suzanne – and thank you for your query regarding preferences and instructions in an LPA. I am assuming from your query that you (and perhaps someone else) are the appointed attorney under the LPA? That being so, you should also hopefully have copies of the LPA which will confirm whether there were any preferences or instructions included in it by the donor (the person who appointed you as attorney in their LPA). Hope that helps. Thanks again – Team QLAW.
Hi, I want to put in the instruction section of HW LPA, that I do NOT want to be treated at a particular hospital and my attorney should do all they can to ensure that I am not taken there, (as my 35 year old husband who went for a day case died there due to poor care). Would this invalidate the LPA? As in an emergency an ambulance may take me there whatever my attorney says, as it is my nearest hospital. so would it be viewed as an impossible instruction? I don’t want to state as a preference as it is a must for me.
Thanks so much for your question. And, so sorry to hear of the terribly sad circumstances that have prompted you to raise it. So, there are a few points to be mindful. Firstly, when you come to register the LPA, the Court of Protection (COP) will reject the LPA if they’re unhappy with the instruction. So, it is a point you can therefore resolve (or not) with the COP. Ultimately, it is a decision for them. Beyond that, there are practical issues you may want to bear in mind in any event. So firstly, a Health & Welfare LPA only applies when registered AND one loses capacity. Assuming you are in good health, an emergency situation as you describe (unexpected medical treatment/ambulance) may not present as something where an LPA would naturally come to light anyway? Also, there is a general thought that for both types of LPA’s there is an argument to try to not restrict the powers of your chosen attorney’s if at all possible. For example, if the hospital in question happens to be renowned for treating something that you were to succumb too, it might place your chosen attorney in a very difficult moral dilema to have to refuse that treatment? All long odds scenarios – but worth thinking about. As a starter, it may be worth getting in touch with the CoP Helpline – 0300 456 4600. Hope that helps – and thank you again for your Lasting Power of Attorney query.
I am looking for a form of words for my Health & Welfare LPA that describes my preference that I do not wish to be a burden on anyone should I be terminally ill or severely mentally or physically incapacitated such that my quality of life is just barely existing and requiring care when I do not want any treatments to prolong my life
Hi Richard and thank you so much for reaching out. There isn’t a ‘precedent’ wording as everyone’s wishes are very personal to them.
The key really is that it makes sense in plain English. There are often concerns that the OPG might reject an LPA at registration if preferences or instructions go against legal principles. From a human perspective (and assuming the OPG didn’t reject the registration), it is terribly important that your chosen attorney(s) are clear on exactly what your wishes are so that you do not create a moral dilema for them. This might be difficult given the endless scenarios that might occur. If you would prefer, you can deal with those wishes in a side letter to your attorneys rather than seeking to bind them with either a preference or instruction. And do remember also that if the OPG did reject the LPA at registration because of concern over anything – you would have the opportunity to put it right (albeit they would charge you to re-sumbit).
Thank you. Much appreciated.
Hi,
Re. Section 7 of LPA Finance.
Advice on form re. Statement/Instructions: ” Most people leave this page blank”.
Is this good advice? Are there any concrete reasons why it should be left blank?
Sincerely,
Liam
Most people leave this page blank –
Hi Liam and thanks so much for your comment – an interesting one! And it perhaps raises a general point around Lasting Power of Attorney in terms of who the donor should appoint?
So, in practice, yes, the majority of people do not include preferences. That is how it is, rather than ‘advice’. I guess the whole spirit of an LPA is to allow your chosen attorney the freedom to look after your affairs as the donor would otherwise have done, had they not lost capacity. And, who knows what the future might hold, and what things the attorney’s may need to do to discharge their duties to act in the best interests of the donor? By definition, a preference or instruction is going to tie hands to some extent.
In my own experience, donor’s will often raise concerns like: who decides if I have lost capacity? can my attorney benefit themselves? And this perhaps raises the related point (to your question) that the key is to choose an attorney very carefully! And in doing that, one should not have concerns!
Having said of all that, what are your thoughts Liam? Would love to hear your take on it……
Thanks so much – Team QLAW!
(NB – our articles and any comments thereon do not represent legal advice and should not be taken as such. If you require legal advice about your particular case, please make contact with us).