"WILL YOU STILL NEED ME...?"
We all hope to go on managing our own affairs for as long as possible. Many of us will insist on doing so, and jealously guard our independence, even when some practical help from time to time would probably come in useful. But sometimes an elderly person’s needs will increase, such that it really does make sense, or even becomes a necessity, for someone to intervene and help organise or deal with matters on their behalf.
Thankfully, our legal system provides some assistance, by enabling us to put in place a framework to govern how decisions will be made, and support given, in the future, at a time when we might be unable to make decisions or support ourselves.
This article takes a look, from the legal perspective, at "Lasting Powers of Attorney" and "Living Wills".
Lasting Power of Attorney (LPA)
An LPA is a legal document by which an individual (the "donor") appoints another person or persons (the "attorney") to act on their behalf if and when the donor is unable to do so. It is entered into in advance of the donor losing mental capacity, and then kept until needed. It cannot be used unless it has been registered (see below).
An LPA therefore enables an individual to plan in advance for the decisions they want to be made and things they want to be done on their behalf, in the future, at a time when their capacity to do so themselves has diminished or been lost. It enables the individual to identify the people to take on this responsibility, and even to give them guidance as to how he or she would wish them to act.
The Attorney
The donor should choose carefully the intended attorney, someone whom they trust to act wisely and compassionately. The LPA may appoint more than one attorney, and if it does, then set out in what circumstances the attorneys must act together ("jointly"), or may act either together or separately ("jointly and severally"). A joint appointment will cease automatically if one of the attorneys is unable or unwilling to act. The LPA may also appoint a replacement attorney, to act if the first-named attorney cannot.
It is possible to include restrictions in an LPA which will limit the extent of the powers given to the attorney eg a prohibition on the attorney dealing with a particular asset, or making certain medical decisions, and/or guidance to the attorney as to how he or she should act in particular circumstances.
Importantly, the attorney is obliged to act in accordance with statutory principles, the most fundamental of which is that any act or decision must be done or made in the donor’s best interests.
The Forms
There are two prescribed LPA forms. The first relates to property and financial affairs, and the second relates to health and welfare. A donor may enter into either or both of these, depending on what is appropriate in their own circumstances.
- The Property and Financial Affairs LPA
Decisions made under an LPA for property and financial affairs would include, for example, operating (and opening or closing) bank accounts, paying bills, making investment decisions, signing tax returns or other forms dealing with tax and benefit matters, and buying or selling property.
The attorney is not permitted to make gifts (other than those usually made by the donor, for birthdays or to charity), or to execute a Will on the donor’s behalf.
A Property and Financial Affairs LPA can be acted upon once registered, unless it specifies otherwise.
- The Health and Welfare LPA
Decisions made under an LPA for health and welfare would cover issues such as where the donor will live, their care and medical treatment, diet and dress, and dealing with personal correspondence and papers.
Importantly, the attorney cannot refuse life-sustaining treatment unless the LPA says so. The form requires the donor to decide whether this decision should lie ultimately with the donor’s doctor or attorney.
Unlike a Property and Financial Affairs LPA, a Health and Welfare LPA can only be acted upon (even following registration) once the donor has lost capacity.
Registration
An LPA does not need to be registered as soon as it is made. However, it cannot be acted upon until registered, and registration may take several weeks. So sometimes there might be a case for registering sooner rather than later, but this should always be considered carefully.
Registration is made with the Office of the Public Guardian.
An LPA may be cancelled at any point by the donor, before or after it has been registered, so long as the donor has capacity to do so.
Safeguards
There are two safeguards, which form part of the LPA process:
- The LPA Certificate
At the time an LPA is first made, it must be executed by a "certificate provider", who is able to confirm that the donor has capacity and understands the significance of making the LPA.
This must be an independent person (not the attorney) who has either known the donor for at least two years, or has the relevant professional expertise to enable him/her to make the assessment – this would most naturally be the donor’s doctor, but a solicitor or social worker might also act as the certificate provider.
- Notification of the application for registration of the LPA.
It is necessary to nominate at least one person (again, not the attorney) who must be notified before the LPA is registered.
Such a person will have the opportunity, and the right, if he or she wishes to do so, to make representations to the Office of the Public Guardian objecting to the application for registration.
Living Wills
A "Living Will" is an expression of intention to refuse medical treatment in the future, at a time when you lack the capacity to consent or otherwise. The Living Will, unlike the LPA, does not specifically appoint any person to act on your behalf, it is instead effectively a statement to the world (but in particular to family, your doctor and others who may be concerned in your health care) as to your wishes, in circumstances where you are unable to communicate those wishes.
Although the wishes expressed in a Living Will are not legally binding in quite the same sense that the wishes of a testator in an ordinary Will have to be followed explicitly in winding up the testator’s estate, nevertheless the concept of the Living Will does have backing in statute, the Mental Capacity Act 2005.
Living Wills need to be prepared with great care and attention to detail, identifying the relevant parameters and mentioning by name those persons that the maker of the Living Will wishes to be consulted before any decision is made or carried out.
Some clients are attracted to the idea of a Living Will because they genuinely worry about the situation of being in an accident, or suffering an illness or a stroke, leaving them so injured or incapacitated that they will be unable to communicate how they wish to be treated; their psychology is such that they feel able to form a view now of how, in a particular state of health or existence, they believe they would react in such circumstances. Sometimes the decision to make a Living Will is prompted by the onset of a degenerative condition that it is known might lead to incapacity over time, and the document is drafted with that specific condition in mind.
The technical or legal term for a Living Will is an "Advance Decision", and you will sometimes see this terminology used instead.
An Advance Decision is not applicable with respect to a refusal of life-sustaining treatment, unless it is specific, made in writing and signed, using the correct form of words, and witnessed properly.
An Advance Decision may be withdrawn or amended, and if you make a later LPA which authorises your attorney to make decisions in relation to the same situation, then it will be overridden automatically.
It is important in practice that you notify all relevant people of having made an Advance Decision – both family, and your doctor who will be able to update your medical records.
Conclusion
Lasting Powers of Attorney are, certainly, far more common than Living Wills. An LPA can be an effective means of providing peace of mind to an elderly parent or other person, who is beginning to find life more difficult to cope with, to know that things are set up so that help will be at hand if and when needed. But in addition, and more importantly, if the time does come, an LPA will enable members of the family to provide the necessary help and support to the elderly parent or other person - and to do so efficiently and without disruption, hopefully making everyone’s lives a little more comfortable, at what may be a difficult time.