LPA: Common Mistakes | Nigel Shepherd, Barrister-at-Law

You can’t change how your attorneys are appointed to act

Don’t appoint attorneys to make decisions one way, then include instructions that make them act differently. If you said your attorneys should act “jointly and severally” — so they can decide alone or together — you must not then add instructions such as:

that one attorney must do what another says;
that one attorney must handle your business affairs, and another your private affairs;
that where attorneys disagree, the majority should decide; or
that they must make some decisions together — if that is what you want, appoint them in LPA section 3 to act “jointly for some decisions, jointly and severally for other decisions” instead.

Gifts, and using your money for other people

Instructions about gifts often cause problems. There are strict limits on the kinds of gifts your attorneys may give on your behalf. They may give gifts — to your family, friends, associates, or to themselves — on “customary occasions” such as weddings, anniversaries, birthdays and religious holidays, and may donate to charities you have previously supported.

You cannot make it compulsory for your attorneys to give such gifts, or to use your money to benefit or maintain other people. Instructions using words like “must”, “shall” or “has to” for this will be invalid, because they could stop your attorneys acting in your best interests — your attorneys would instead need the Court of Protection’s permission for that kind of gifting or maintenance.

A preference — using words like “would like”, “may” or “can” — suggesting a gift is fine. Your attorneys will still need to consider whether it is reasonable, taking into account how much money you have.

Gifts you can’t authorise, unless expressed as a preference: trust funds for grandchildren; school fees for grandchildren; interest-free loans to family; maintenance for any family member other than your spouse, civil partner, or a child under 18. Your attorneys would need the Court of Protection’s permission to make gifts like these on your behalf.

Other common mistakes

You can’t tell your attorneys to do anything against the law — including anything to do with euthanasia or assisted suicide.
You can’t say your attorneys should act in the best interests of anyone else — your spouse, partner or children — because your attorneys act for you alone.
You can’t say a replacement attorney may only start acting in specific circumstances — for example, an original attorney being on holiday.
Don’t add health and welfare instructions to a property and financial affairs LPA, or vice versa — make a separate LPA for each.
You can’t tell an attorney to change your Will — that is outside their powers.
You can’t give an attorney the power to appoint a replacement attorney.

Preferences vs instructions, at a glance

Preferences	Not binding. Attorneys should bear them in mind. Use words like “prefer” or “would like”.
Instructions	Binding. Attorneys must follow them exactly, unless unlawful or unworkable. Use words like “must”, “shall” or “have to” — and take care they don’t conflict with the rest of the LPA, or with the law.

Some material on this page is adapted from the Office of the Public Guardian’s official guidance.

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