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.
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