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Throughout Dementia Action Week our Private Client team have been looking at the different aspects of life with dementia. In our latest blog Veronica Mullins, Partner is focussing on having a voice after you have lost the ability to make your own decisions, if ever this were to happen.When a person loses the ability to make their own decisions, someone will make them on their behalf. If you have prepared Lasting Powers of Attorney (LPA) the people you appoint as Attorneys will be the people who make those decisions.
Within the LPA document is a section in which the Donor (the person giving the authority) can include preferences and/or instructions. This is one way in which a person can still have their voice heard after they have lost the ability to look after their own affairs.
This optional section appears in both the Property and Financial Affairs LPA and Health and Welfare LPA documents.
In the case of property and finance you may wish to instruct your Attorneys that, for example, you only want your money to be invested in ethical funds or that you wish to make donations to certain charitable organisations.
For health and welfare purposes, your preferences and instructions may relate to your diet, where you live or even life sustaining treatment.
One distinction that ought to be drawn between instructions and preferences, is that instructions are binding on Attorneys whereas preferences are just that, a way to let Attorneys know what the donor would prefer to happen.
There are advantages and disadvantages to including preferences and instructions and due consideration and professional advice should be taken.
If you include instructions in your LPA then you are the person who has made the decision and it is a way to have a voice after you have lost the ability to make decisions. It can give some piece of mind to someone suffering with an illness, such as dementia and allow them to maintain some control over this aspect of their life.
Instructions can also take very serious decisions, such as whether to consent to or refuse life sustaining treatment, away from your Attorneys. Left alone, not only may your Attorneys make a decision which you would not want them to make, they may second guess themselves and cause themselves great stress and worry.
On the other hand, instructions are included when you prepare the document and are not immune to changing circumstances. You may prepare a Lasting Power of Attorney decades before it is ever used and your instructions at the time of preparing the document may not reflect your wishes at the time they come to be used. If you have included instructions, your Attorneys are bound to follow them regardless of whether your feelings have changed.
Although preferences are not binding, they too are your preferences at the time you execute the document and in the circumstances it could be argued that you simply keep your Attorneys informed of your wishes whilst you have capacity.
It is, of course imperative that you can trust those you appoint as Attorneys and you could take the view that if you are appointing an Attorney, you should trust them to use their discretion to make decisions, in your best interests, based on the merits of each individual circumstance.
LPA’s are very serious documents and the scope of their power is vast. You should therefore not enter into them without proper consideration. Instructions and preferences in particular, require careful wording which avoids ambiguity and therefore we recommend that anyone preparing such a document seeks professional legal advice.
If you would like to discuss Lasting Powers of Attorneys contact our expert Private Client Team on 0800 988 3650, email email@example.com text LAW to 67777