Is your LPA fit for purpose?
28 / 12 / 2018
You may have a Lasting Power of Attorney (“LPA”) that appoints persons (“attorneys”) to look after your financial affairs and/or health and welfare at a time in the future when you may lose mental capacity, but do your attorneys really know your wishes and feelings about important issues so that they can run your affairs in the way you would want them to?
Letters of Wishes
If you have an LPA, you can set out your past and present wishes and feelings in a Letter of Wishes (also known as an “advance statement”) which sits alongside your LPA to give the attorneys further details about how you would like them to act in practice. This would include your beliefs and values that would influence a decision if you had capacity, and other factors that you would consider if you were able to do so. You might have strong views about where you are to live, who can visit you and attendance at a particular church. These wishes and feelings should be considered as far as they are “reasonably ascertainable”. We can assist with preparing such a Letter of Wishes.
However, if you have strong feelings about medical treatment and would like medical professionals to know that you would want to refuse a particular medical treatment (e.g. life-sustaining treatment), you should make an Advance Decision. This has a different status to a Letter of Wishes in law: medical professionals cannot ignore a valid Advance Decision. It must be followed if it meets the legal requirements and applies to your circumstances. If there is no valid and applicable Advance Decision, treatment would be provided based on your best interests.
Review your LPA
We are currently undertaking a review of many clients’ existing LPAs or Enduring Powers of Attorney (“EPA”). It may be some time since you created yours. Your circumstances may have changed and this may have an effect on your LPA/EPA. Are the persons you originally chose as your attorneys still suitable to manage all your financial or healthcare decisions? Do they have the skills to undertake this work? Do they know you well enough? Do you want to think about restricting your attorneys’ powers so there are more protections for you? Following a change in the Office of the Public Guardian’s guidance in 2015, there is also now a specific form of wording that must be included in all LPAs where the donor has investments in a discretionary management scheme, without which the attorneys may have difficulty establishing their authority to manage those assets once the LPA takes effect.
Please do get in touch if you feel your LPA needs updating or you would like to put in place a Letter of Wishes or Advance Decision.