The OPG has recently updated the LPA digital service to include ‘preferences and instructions’. The OPG has made great strides in digitising the process especially with the Use the LPA service but, this update is crucial for the attorney. It will hopefully make the organsiations that need to see your LPA less likely to ask for the paper copy. This is because it allows the organisations to view a more accurate version of the LPA.
Preferences and instructions
What are preferences and instructions and why are they so important? First of all they are optional and most donors do not add any. Many donors prefer to talk to their attorneys about their wishes in advance, rather than leaving written directions.
When the attorney sends the LPA to a bank or care home, for example, they will be checking for preferences and instructions. That is why, before this update, they would very often ask for you to send a paper copy if the LPA showed that there were eith preferences or isntructions, or both. Having to send a paper copy is time-consuming and costly. You should never send the original in the post so, you will need to pay for copies to be certified by a legal professional and then track the return of the document.
If the preferences or instructions are complicated or badly written, it can make an LPA unworkable. If this happens the OPG may not register the LPA or the Court of Protection may need to remove a preference or instruction from the LPA. This can take many months.
The donor must not write any instructions that would require the attorney to break the law. They must also make sure that they do not contradict anything they’ve said elsewhere in the document.
There is special guidance for discretionary investments which we have covered in our article: Discretionary Investments and Power of Attorney
If there is any doubt about the preferences and instructions, then it is advisable to seek legal advice.
Preferences
The preferences are merely an expression of wishes that the donor has, the attorney does not have to abide by them. They are not, therefore, legally binding.
Some examples of preferences in a Property and Finance LPA might include:
I’d like to donate £10 a month to Dementia UK
I’d like my investments to be ethical
Some examples of preferences in a Health and Welfare LPA might include:
I’d like to live within 10 miles of my family
I’d like to have a pedicure and manicure every month
Instructions
Unlike preferences, instructions must be followed by your attorneys and are mandatory requirements. These instructions will have been checked by the OPG upon registration so, they should be legally binding.
If the donor wants to write instructions, use words such as ‘must’, ‘shall’ and ‘have to’.
Some examples of instructions for a Property and Finance LPA might include:
My attorneys must continue to make donations to charities that I have previously supported or for which I have set up standing order payments.
My attorneys must not sell my home unless, in my doctor’s opinion, I can no longer live independently.
Some examples of instructions for a Health and Welfare LPA might include:
My attorneys must not decide that I am to move into residential care unless my doctor says that I can no longer live independently.
My attorneys must ensure that I am fed a vegan diet with no animal products.
If the donor has chosen to appoint their attorneys to act jointly and severally the donor must not add these sort of instructions:
that one attorney has to do what another attorney says
that one attorney must deal with the donor’s business and another with their private affairs
The donor cannot tell an attorney to change the donor’s will – that’s something outside an attorney’s powers.
Life sustaining treatment
If the donor chooses to give their attorneys the power to make decisions about life-sustaining treatment, they can add instructions to specify medical conditions where their attorneys must or must not consent to life-sustaining treatment on the donor behalf.
