Under a Lasting Power of Attorney (LPA), attorneys are given significant authority but must always act within legal and ethical boundaries. This ensures that their decisions are always in the donor’s best interests. This article discusses how to make decisions under an LPA.
It looks at the types of LPAs, the attorney’s responsibilities, how decisions are made and key challenges that may arise. It also looks at using the balance sheet approach to making decisions.
Types of Lasting Power of Attorney
There are two main types of LPA, each covering different areas of decision-making:
- Finance and Property LPA: This type allows the attorney to manage the donor’s financial matters, such as paying bills, managing bank accounts, selling property and handling investments. The donor can choose for this LPA to be used either while they still have capacity (with their consent) or only after they lose capacity.
- Health and Welfare LPA: This LPA covers decisions about the donor’s personal welfare, including where they live, their medical care and day-to-day matters such as diet and hygiene. It can only be used when the donor no longer has the mental capacity to make these decisions.
An individual may choose to have either or both types of LPA, depending on their preferences and circumstances. Attorneys must be aware of the scope of the LPA they are appointed under and not overstep their authority.
Responsibilities of the Attorney
Attorneys have a legal duty to act in the donor’s best interests at all times. Their responsibilities include:
- Following the Donor’s Wishes: Attorneys must consider the donor’s past and present wishes, preferences and values. If the donor expressed specific preferences before losing capacity, attorneys should give them weight when making decisions.
- Following the Mental Capacity Act 2005: The Mental Capacity Act (MCA) sets out five key principles that attorneys must adhere to, including assuming the donor has capacity unless proven otherwise and acting in the least restrictive way possible.
- Keeping Finances Separate: In the case of financial affairs, attorneys must keep the donor’s finances separate from their own and ensure transparency in all financial dealings.
- Consulting with Others: While the attorney has decision-making authority, they are expected to consult relevant individuals (family members, healthcare professionals, etc.) to ensure decisions are well-informed.
Making Decisions Under a Lasting Power of Attorney
When a donor loses capacity, the attorney must begin making decisions on their behalf, using a structured approach that is consistent with the Mental Capacity Act 2005.
Step 1: Determine the Donor’s Capacity
Before an attorney makes a decision, they must first assess whether the donor lacks the capacity to make that specific decision. Capacity can fluctuate, so the attorney should not assume permanent incapacity. Under the MCA, a person has capacity if they can:
- Understand the information relevant to the decision.
- Retain the information long enough to make a decision.
- Weigh up the information as part of the decision-making process.
- Communicate their decision (whether verbally, in writing, or by other means).
It is best to have a proper mental capacity assessment carried out for more complex decisions. If the donor is found to lack capacity in relation to the specific decision, the attorney can proceed to make the decision.
Step 2: Gather Relevant Information
The attorney should gather all necessary information to make an informed decision. This may include:
- The donor’s past wishes and preferences.
- Professional advice (e.g., financial, legal, or medical advice).
- The views of family members or close friends.
- Any legal requirements, such as those governing the sale of property or investments.
Step 3: Consider the Best Interests of the Donor
Under the MCA, the attorney is required to act in the donor’s best interests. This goes beyond simply what is practical or convenient. Best interests involve:
- Considering the donor’s wishes, beliefs, and values.
- Consulting with others involved in the donor’s care or decision-making.
- Weighing the benefits and risks of each option.
- Seeking the least restrictive option that respects the donor’s autonomy and rights.
In situations where there are multiple options, attorneys should use frameworks like the balance sheet approach, where the pros and cons of each option are weighed to reach a well-reasoned decision.
Step 4: Document the Decision
It is crucial for attorneys to document the decision-making process, especially for significant decisions, such as selling property, deciding on medical treatment or moving the donor into care. Keeping records demonstrates transparency and helps protect the attorney if the decision is later questioned.
Using the Balance Sheet approach
One useful tool to assist in the process is the balance sheet approach. This structured framework helps attorneys weigh the pros and cons of different options, ensuring that decisions are well-reasoned and take into account all relevant factors.
The balance sheet approach was initially developed by courts to assist in making complex decisions for individuals who lack capacity. This involves listing and weighing the benefits and drawbacks of various options. Much like a financial balance sheet, this approach allows attorneys to systematically compare the positive and negative aspects of a decision. This is to determine which course of action is in the donor’s best interests.
Tips for a balance sheet approach
- Identify the decision that needs to be made
- Gather all the relevant information
- List the options available
- Create the balance sheet
- benefits/pros
- risk/cons
- Evaluate the weight of each factor
- Consider the least restrictive option
- Make the decision
- Document the decision
The balance sheet approach offers attorneys a structured and methodical way to make best interests decisions under a Lasting Power of Attorney. By carefully weighing the benefits and risks of each option, consulting with relevant individuals and considering the donor’s past wishes and values, attorneys can ensure that their decisions are objective, fair and aligned with the donor’s best interests. This approach also provides transparency and accountability in the decision-making process, ensuring that the attorney’s actions are guided by the legal framework of the Mental Capacity Act 2005.
Examples of Decisions Attorneys Make
Here are some common types of decisions attorneys may be required to make under an LPA:
Financial Decisions
- Managing bank accounts: Attorneys can access the donor’s bank accounts, pay bills, and manage regular outgoings.
- Selling property: Attorneys may need to sell the donor’s home if the funds are required for care but this should only be done if it is in the donor’s best interests and the donor cannot continue living in the home.
- Investments: Attorneys can manage and make decisions regarding the donor’s investments but they must act prudently and seek professional advice if necessary.
Health and Welfare Decisions
- Medical treatment: Attorneys may need to make decisions about medical procedures, including whether to consent to or refuse treatment based on the donor’s known wishes or best interests.
- Living arrangements: Attorneys may decide whether the donor should move into residential care or stay at home with support.
- End-of-life care: Attorneys could be involved in decisions about life-sustaining treatment if the donor has expressed preferences through an advance decision or within the LPA itself.
Challenges Attorneys May Face
Making decisions for someone else is challenging for the attorney. Here are some points to consider:
Conflicting Opinions
Attorneys may face situations where family members or professionals have differing opinions on what is in the donor’s best interests. In such cases, the attorney must act impartially and always prioritise the donor’s welfare. Consultation and mediation may help resolve conflicts.
Emotional Strain
Making decisions on behalf of a loved one can be emotionally challenging, particularly in matters involving health and welfare. Attorneys may struggle with guilt or pressure from family members. It is important to remain focused on the donor’s wishes and legal obligations rather than personal feelings.
Financial Complexity
Managing someone else’s finances can be complex, especially if the donor has significant assets or multiple investments. Attorneys should seek professional financial advice if they are unsure about how to manage the donor’s affairs.
Changes in the Donor’s Condition
Attorneys must be prepared for changes in the donor’s condition, especially if they are managing long-term medical conditions like dementia. A decision made in the donor’s best interests today may need to be reassessed in the future as circumstances evolve.
Conclusion
Acting as an attorney under a Lasting Power of Attorney is a significant responsibility that requires careful consideration, legal compliance and empathy. Attorneys must ensure they act in the donor’s best interests, following the principles of the Mental Capacity Act 2005, while balancing financial, health, and welfare decisions. By staying organised, consulting with professionals, and relevant parties, using government guidance and keeping clear documentation, attorneys can navigate the complexities of their role while safeguarding the donor’s well-being and rights.
