LPAsDecisions That Attorneys Can Make

Lasting Powers of Attorney (LPAs) for Property and Financial Affairs and Health and Welfare allow the attorneys to make decisions that relate to the donor’s property and financial affairs and health and welfare respectively. The forms however do not specifically state what decisions attorneys can and cannot make. It is advisable to give the donor an overview of what decisions their attorneys will be able to make for them, and decisions that the attorneys cannot make.

Property and Financial Affairs – Decisions they can make

The Mental Capacity Act (MCA) Code of Practice suggests that Property and Financial Affairs (PA) attorneys could make decisions about the following:

• buying or selling property
• opening, closing or operating any bank, building society or other account
• giving access to the donor’s financial information
• claiming, receiving and using (on the donor’s behalf) all benefits, pensions, allowances and rebates (unless the Department for Work and Pensions has already appointed someone and everyone is happy for this to continue)
• receiving any income, inheritance or other entitlement on behalf of the donor
• dealing with the donor’s tax affairs
• paying the donor’s mortgage, rent and household expenses
• insuring, maintaining and repairing the donor’s property
• investing the donor’s savings
• making limited gifts on the donor’s behalf (subject to the terms below)
• paying for private medical care and residential care or nursing home fees
• applying for any entitlement to funding for NHS care, social care or adaptations
• using the donor’s money to buy a vehicle or any equipment or other help they need
• repaying interest and capital on any loan taken out by the donor.

This list is not exhaustive.

PA Attorneys can generally deal with the donor’s business, unless the terms of the LPA, the terms of the articles of association or the terms of a partnership agreement state otherwise.

Since 1st March 2017, it has been accepted that a donor’s will can be disclosed to their PA attorneys unless the LPA states otherwise.

Property and Financial Affairs – Decisions they cannot make

Unless the LPA gives the attorneys the power to do so, the attorneys will not be able to transfer investments into a discretionary management scheme or allow any of the donor’s existing discretionary management schemes to continue. See our previous article for more details.

Attorneys are only able to make reasonable gifts to charities that the donor may have gifted to, or to friends and family members on customary occasions. They cannot make gifts outside of these powers without applying to the Court of Protection. See our previous article for more details on this.

If the LPA states that the attorneys can only act when the donor has lost capacity, they cannot make any decisions whilst the donor still has capacity.

Attorneys cannot write a will for the donor or amend an existing will.

PA attorneys cannot make decisions that relate to the donor’s health and welfare.

Health and Welfare – Decisions they can make

The MCA Code of Practice suggests that Health and Welfare (HW) attorneys could make decisions about the following:

• where the donor should live and who they should live with
• the donor’s day-to-day care, including diet and dress
• who the donor may have contact with
• consenting to or refusing medical examination and treatment on the donor’s behalf
• arrangements needed for the donor to be given medical, dental or optical treatment
• assessments for and provision of community care services
• whether the donor should take part in social activities, leisure activities, education or training
• the donor’s personal correspondence and papers
• rights of access to personal information about the donor, or
• complaints about the donor’s care or treatment

Again, this list is not exhaustive.

Health and Welfare – Decisions they cannot make

The attorneys cannot make decisions regarding life sustaining treatment if the LPA does not give them that authority in section 5 of the LPA. Alternatively, section 5 may give them authority, but instruction may restrict that authority.

LPAs cannot give attorneys the power to demand specific forms of medical treatment that healthcare staff do not believe are necessary or appropriate for the donor’s particular condition.

The attorneys cannot make decisions whilst the donor still has capacity.

HW attorneys cannot make decisions that relate to the donor’s property and financial affairs.

General Restrictions

All attorneys are able to claim reasonable expenses that they incur whilst acting for the donor. This includes expenses such as postage, travel costs and the cost of an accountant preparing annual accounts. They can only claim above this if the LPA gives that authority.

What decisions the attorney makes can be restricted by instructions in the LPA, for example a PA LPA could include an instruction stating that the attorneys cannot make any gifts and a HW LPA could include an instruction stating that the attorneys cannot make decisions on who the donor may have contact with.

S27-29 MCA details a number of decisions that cannot be made by attorneys:

• consenting to marriage or civil partnership
• consenting to sexual relations
• consenting to a decree of divorce or dissolution of civil partnership being granted on the basis of two years’ separation
• consenting to a child’s being placed for adoption by an adoption agency
• consenting to the making of an adoption order
• giving or consenting to treatment for a mental disorder where the treatment is regulated by Part 4 of the Mental Health Act 1983
• voting in an electron or at a referendum on the donor’s behalf