Private Lives - Lasting Powers of Attorneys and the duties they impose

04 April 2016

The two Lasting Powers of Attorneys (LPA) available are in relation to property and financial affairs and health and welfare.

The two Lasting Powers of Attorneys (LPA) available are in relation to property and financial affairs and health and welfare.

A property and financial LPA is used to appoint attorneys to make a range of decisions including buying and selling property, using a bank account and dealing with tax issues. A health and welfare LPA is used to appoint attorneys to make decisions about where the donor should live, the day to day care that they receive and whether to authorise or refuse medical treatment.

It is worth noting that making the LPA is simply the first step and in order to use it you must register the document with the Office of the Public Guardian and this process can take a number of months.

The legislation requires the attorney to act in the best interests of the donor. The question therefore arises as to what constitutes best interests? The legislation sets out some factors for the donor to consider, including:

  • encouraging the donor to actively participate in the decision making process
  • identifying all relevant circumstances surrounding the decision that has to be made
  • finding out the donor’s views, such as religious, cultural, moral or political
  • avoiding making assumptions as to what a person may think based on their age, behaviour or condition
  • assessing whether the donor is likely to regain capacity and seriously consider whether the decision can wait.

If the decision concerns life sustaining treatment the decision for the attorney can seem even more complex. The legislation therefore advises attorneys to:

  • not be influenced in any way by a desire to bring about the person's death; they should not make assumptions about the person's quality of life
  • consult others, such as family members who have meaningful contact with the donor, any previous attorneys and anyone else who is actively engaged in caring for the person.

The duty for attorneys to act in the best interests of the donor was demonstrated in the recent case of Re AMH. Here, the attorney was the daughter of the donor. The attorney had a history of making inappropriate purchases for her mother and failing to save her mother’s surplus income for the future. Part of the mismanagement involved the daughter spending £250 a month on junk food; she frequently turned up at the care home with ‘24 mini sausage rolls, 6 pork pies, and numerous cakes and biscuits; too many for one person comfortably to eat. So they would end up being thrown in the bin.’

The court held that the LPA should be revoked and it be replaced with a Deputyship Order as this requires the Office of the Public Guardian to act in a supervisory capacity. This case highlights how the court takes the duty to act in the best interests of the donor very seriously and will use its powers to ensure that this is achieved. However, it also shows great respect for the donor’s original choice of attorney because it was the daughter who was appointed as deputy, albeit within the safeguards of a deputyship order.

The content of this article is for general information only. For further information regarding Lasting Powers of Attorneys, please contact Anna Kelly. Law covered as at April 2016.