Giving lasting powers of attorney (LPAs) to trusted individuals is an important and significant step to take in safeguarding your future, both in terms of your finances and in matters of your health and welfare. By planning ahead, you can ensure that those individuals can adequately look after your best interests, therefore providing peace of mind that if you end up losing mental capacity, those individuals will be able to look after your best interests.
There are many circumstances in which it will be sensible to provide your attorneys with more detailed guidance or instructions as to how they should act in your best interests. When drafting LPAs, you are able to include instructions and preferences. Whilst instructions are binding and must be followed by attorneys, preferences set out your wishes. It is important to know when to use which of these, as if you attempt to impose binding obligations on attorneys which may not result in them acting in your best interests, this can cause complications for attorneys and for the efficacy of your LPAs.
When properly drafted, instructions and preferences provide a very useful means for the person granting the powers to have more control over their future. They can also be much appreciated by attorneys as they can make their job easier, with tailored guidance as to how to reach certain decisions, as well as avoiding potential conflicts between attorneys. However, both for donors and attorneys, preferences and instructions will only be useful if they have been carefully considered and unambiguously drafted.
Poorly drafted preferences and instructions can result in the Office of the Public Guardian rejecting that instruction or preference. More importantly though, you will want to avoid the potential for any ambiguities or confusion, which ultimately might result in the requirement for your attorneys to make an application to the court to assist them in making decisions.
By using a specialist lawyer with experience in drafting instructions and preferences that meet the needs of different clients, you will minimise these risks. A lawyer will also prompt you to consider certain circumstances by bringing matters to your attention that you may not have thought about. Some examples of situations where they might be particularly useful are:
- how your attorneys should deal with any foreign assets, such as whether to obtain local advice;
- if you have business assets, you may want these to be dealt with under a separate LPA with a different attorney, but it will be important that there is no conflict or overlap between your LPAs, and that there is clarity about who has the power to do what;
- authorising your attorneys to look after or provide for dependent relatives;
- when paying an attorney if they are providing their services in their professional capacity, as you risk ending up in a position where they are unable to act at all.
Using a specialist lawyer at the outset of the process means that you will have the comfort and peace of mind of knowing that your circumstances have been carefully considered. Your lawyer will then be able to provide bespoke advice and clear unambiguous wording to ensure that your LPAs achieve your objectives and can be used in the way that you intended when you made them.
Please get in touch with Clare-Howard Vyse to arrange an appointment with one of our specialist team for further information about LPAs.