When someone (the Donor) creates a Lasting Power of Attorney (LPA) they are appointing someone they trust (the Attorney) to make decisions for them if they do not have the mental capacity to do so. Under a LPA, Attorneys have the legal rights to make decisions for the Donor about finance, property, care and treatment.
What actually is an LPA & how do they work?
Check out our previous blog, ‘How does a Lasting Power of Attorney work?‘, as we have already gone into detail, explaining how this legal document works and the difference between the two types; property and finance, and health and welfare.
Treatment and care decisions
Under the Health and Welfare LPA, an Attorney can make decisions on anything to do with the Donor’s health and personal welfare.
Below are some examples of what decisions can be made by the Attorney:
- What type of medical treatment the Donor will receive
- What type of care the Donor will receive (and where)
- The Donor’s daily diet
- How the Donor dresses
- The Donor’s daily routine.
When it comes to life-sustaining treatment, the Attorney can only make this decision for the Donor if it specifically says so in the LPA.
When making decisions for the Donor, the Attorney must have their best interests meaning that the Attorney should think about:
- Does the Donor have the capacity to make a decision? If not, is it likely that they will regain capacity to make care and treatment decisions in the future?
- Has the Donor expressed wishes about treatment and care in the past? What values and beliefs does he or she have?
Can a doctor go against the Attorney decisions?
Yes, there are situations when a doctor can choose to ignore the Attorney’s decisions.
Situation #1 – the doctor may believe that the Attorney doesn’t have the person’s best interests in mind.
Situation #2 – an Attorney may not have been given the relevant authority to make a decision on behalf of the Donor.
Situation #3 – a Donor’s Advance Decisions may actually override an LPA. Decisions that were made in an Advance Decision, also known as a Living Will, after the Attorney was appointed will override what has been stated in the LPA. If the decision hasn’t been detailed in the Advanced Decision, the Attorney will have authority under the LPA to make that decision.
What to do if the doctor doesn’t agree
There are a few options available to the Attorney if a doctor doesn’t follow their decisions.
Option #1 – the Attorney can ask for a meeting with the doctor, where disagreements can be discussed and hopefully you can both come to a solution.
Option #2 – if the doctor is still disagreeing you can always ask for a second opinion from a different doctor.
Option #3 – after option #3 the next step would be to make a formal complaint or get a solicitor involved.
Option #4 – if there is still no joy, the Attorney can apply to the Court of Protection, to make a decision. If it is urgent there are emergency procedures meaning your case can be dealt with quickly.
Property and finance decisions
Under the property and finance LPA, Attorneys can do the following:
- Buy or sell the Donor’s property – must be at market value
- Pay for any maintenance or repairs needed to the Donor’s property
- Rent the Donor’s property
- Manage the Donor’s bank accounts, pay bills ad deal with investments
- Claim benefits
- Sort out tax
- Buy items for the Donor
- Claim expenses
- Buy and give gifts
However, they can’t do the following:
- Make substantially large gifts to people
- Mange discretionary funds
- Pay themselves a fee for being an Attorney
- Mix finances and accounts with the Donor
- Use their position to make personal gain
- Make tax planning decisions without getting the court of protection involved
- Purchase anything from the Donor at below market rate
- Make substantially large donations
- Make any decisions based on health or welfare
Agreeing to be an Attorney
This bring me to the end of the article. I hope you have a better understanding of what rights an Attorney has under a LPA.
Before agreeing to being someone’s Attorney, think hard about what you are signing yourself up to. As an Attorney you have a great deal of responsibilities and this role can often include making difficult and hard decisions about the Donor’s healthcare and finances.
Being an Attorney is voluntary and unpaid, yes you can claim expenses, but think about how much work you are signing yourself up for.
Let the Donor know if you feel like you don’t have the time or knowledge to be an effective Attorney. Let them know sooner rather than later, as they may lack mental capacity to make other arrangements if you leave it too late.
If you would like to talk to me about LPAs, a conversation is free and no obligation: