Wedlake Bell

This Practice Note, written by Victoria Mahon de Palacios of Wedlake Bell, sets out the advantages, disadvantages and limitations of advance decisions (sometimes referred to as living Wills) and the alternative of a health and welfare lasting power of attorney (LPA), possibly alongside an advance statement. The key advantages are the ability to provide certainty to the decision maker, to provide a written record of wishes and the fact that the advance decision is effective immediately once signed. The disadvantages are the fact that there is no central register, the difficulty of ensuring an advance decision is applicable to future and changing circumstances and the fact that an advance decision can be invalidated by the decision maker’s later behaviour.

This Practice Note, written by Victoria Mahon de Palacios of Wedlake Bell, provides guidance on choosing the attorney or attorneys to act under a lasting power of attorney (LPA). The note deals with the questions of who can act as an attorney, how many attorneys may be appointed and how the appointment of replacement attorneys works. It also sets out some common invalid restrictions relating to the appointment of multiple attorneys.

At some point it is highly likely that the practitioner will have to deal with a number of professional advisers on behalf of their elderly client, either because the client has asked them to deal with an issue or because they are an attorney of or Deputy to the client. This Practice Note examines the various professionals that may have to be dealt with and what information they and the practitioner may want to obtain and/or exchange. It also deals with the question of confidentiality in respect of that information.

This Practice Note, written by Victoria Mahon de Palacios of Wedlake Bell, explains who can object to the registration of a lasting power of attorney (LPA) and the grounds and procedure for doing so. Objections by the donor, attorney(s) and people notified are considered as are the factual and prescribed grounds of objection.

This Practice Note, drafted by Victoria Mahon de Palacios of Wedlake Bell, deals with the circumstances in which a lasting power of attorney (LPA) may be brought to an end. The main scenarios dealt with are revocation by the donor, disclaimer by the attorney, revocation by operation of law and revocation by the Court of Protection. Revocation may be express or implied.

This Practice Note, drafted by Victoria Mahon de Palacios of Wedlake Bell, sets out the duties and powers of an attorney under a lasting power of attorney (LPA). The duties of an attorney include the duty of act in accordance with the principles set out in the Mental Capacity Act 2005 (MCA 2005) and in accordance with the scope of their authority under the LPA, taking into account any restrictions or conditions imposed by the donor. The attorney also has duties under the law of agency, including fiduciary duties, the duty not to delegate, the duty to act in good faith and the duty of confidentiality. Attorneys generally have the power to make any decisions the donor could have made for themselves with certain notable exceptions.

This Practice Note, written by Victoria Mahon de Palacios of Wedlake Bell, looks at how enduring powers of attorney (EPAs) and lasting powers of attorney (LPAs) can be abused and discusses steps a solicitor can take to identify and prevent this abuse, including the inclusion of safeguards within the LPA form, as instructions. The role of the Office of the Public Guardian (OPG) and the Court of Protection in dealing with abuse is also examined. The OPG’s safeguarding policy is discussed and how to report abuse to the OPG’s Safeguarding Unit.

This Checklist sets out practical points for practitioners to consider and work through when taking instructions and advising a client on making an advance decision, sometimes formerly referred to as a living Will. Points covered include capacity to make an advance decision, potential conflict between the advance decision and any health and welfare LPA made by the client, liaising with medical professionals, drafting the advance decision, signing and storing the advance decision and informing relevant people.