An introduction to

Powers of Attorneyand

Advance Decisions

Robert Wright (Partner) and Rosemary Milns (Associate)

Hunters incorporating May, May & Merrimans9 New Square Lincoln’s Inn London WC2A 3QN

What is a power of attorney?

What are the main types and what are the differences between them?

(a) General or ordinary power

(b) Enduring power of attorney (‘EPA’)

(c) Lasting power of attorney (‘LPA’)

(i) Property and Financial Affairs (‘Financial LPA’)

(ii) Health and Welfare (‘Care LPA’)

Why make an LPA?— Reassurance of choosing your own Attorneys

— Avoids the need for a Deputyship application

— Recognised by financial institutions (banks etc) and by care and medical professionals

Who can make an LPA?

Anyone over the age of 18 and with capacity

Who can make an LPA - CapacityDonor will need to understand:― What is an LPA?― Why does he/she want to make an LPA?― Who he/she is appointing as his/her attorney

and why he/she has chosen that person― The nature and scope of the powers he/she is

giving the attorney

Who can make an LPA – Capacity (con’d)— Presumption of capacity

— Decision specific

— Time specific

— Not to be judged on basis of age, appearance, medical conditions

Who can be an attorney under an LPA — Anyone over the age of 18 (for a Financial

LPA, not a bankrupt)

— Family members, although consider skills/capability

— Professionals, although consider fees

Who can be an attorney under an LPA? (cont’d)

— Multiple attorneys

— Consider whether multiple attorneys will act jointly, or independently of each other

— Replacement attorneys

Financial LPA― What sort of decisions can your attorney make on your behalf?

― Key principles:― The attorney has to assume that the donor can make a

decision unless it is shown that they cannot― Any decision made by the attorney has to be in the

donor’s best interests

― What an attorney cannot do or has limited powers to do

Care LPA― What sort of decisions can your attorney make on your

behalf?

― Key principles:― The attorney can only make decisions on the donor’s

behalf if they do not have mental capacity

― Life sustaining treatment

How to make and register an LPA— Obtain the prescribed forms

— Consider mental capacity issues

— Identify who is to act as the attorney or attorneys, also the certificate provider and witnesses

— Decide if replacement attorneys are required

How to make and register an LPA (cont’d)— Decide if attorneys are to act jointly or jointly and severally, or

jointly for some matters and jointly and severally for others

— Decide if any preferences or instructions are to be included

— Obtain the signature of the relevant people in the correct order

— If the LPA is to be used straight away, send it and the completed registration from to the Office of the Public Guardian with the registration fee (currently £110 per LPA)

What to do when the LPA has been registered

Financial LPA (assuming it is to be used straight away)

— Registration with financial institutions

— Set up and keep proper accounts

What to do when the LPA has been registeredCare LPA

— Identify donor’s likes and dislikes

— Discuss future care plans and medical treatment

— Notify doctors, family and friends

Advance DecisionsA decision refusing the giving or continuing of specific medical treatment if, at the time in the future at which that treatment is to be given or continued, the decision-maker has lost the capacity to consent to it.

What can an Advance Decision not do?— Only for refusing treatment; cannot compel doctors to act

— Cannot refuse ‘basic care’

— Cannot be used in connection with illegal acts (e.g. assisted suicide)

— Certain treatments if detained under the Mental Health Act

How to make an Advance Decision— Must be over 18 and have capacity

— No prescribed form, but guidance and model forms available e.g. Compassion in Dying

— To refuse consent to life-sustaining treatment, must be in writing, signed and witnessed

How to make an Advance Decision (cont’d)— Must be sufficiently specific

— Good idea to make in conjunction with doctor/medical professional

— Discuss with family

After making an Advance Decision

— Inform family and medical team

— Review regularly and update if necessary

Other documents— Care LPA

But watch out for conflicts

— Advance Statement

Robert Wright

Rosemary Milns

9 New Square, Lincoln’s Inn, London, WC2A 3QNwww.hunters-solicitors.co.uk

020 7412 0050

Please note that our presenters are not authorised to advise on the interpretation and application of the law to particular circumstances or matters and any such comments made by our presenters will not constitute and must not be relied upon as advice. To the fullest extent permitted by law, neither Hunters nor the presenters will be liable by reason of breach of contract, negligence or otherwise for any loss or damage (whether direct, indirect or consequential) occasioned to any person acting or omitting to act upon this presentation. No part of the presentation may be reproduced in any form or for any purpose without the prior permission of Hunters.