Consulting family and your other attorneys

Your attorneys already have to listen to the people close to you. These clauses tell them who. You can name someone your attorneys should consult about decisions. And if different people hold your two LPAs, you can ask each set of attorneys to keep the other informed.

This guide is one of a series on the preferences and instructions our LPAs offer.

Who should your attorneys talk to before deciding?

The first clause is called Consult named person when making decisions. It is available in both types of LPA.

What it does. You name a person. When your attorneys are working out what is in your best interests, they consult that person and take their views into account. They do this where it is practicable and appropriate. The person does not make the decision. Your attorneys still do.

Why it helps.

• It points to the right person. The person who knows you best may not be one of your attorneys. It might be a partner, a close friend or a sibling.
• It avoids arguments about who counts. Families often disagree about whose views matter. Naming someone settles that.
• It gives the person a clear role. They know they should be asked, and your attorneys know they should ask.
• It helps your attorneys show their working. If a decision is questioned later, they can show they asked the person you chose.

What if different people hold your two LPAs?

Some people choose one set of attorneys for money and another for health and care. That can work well. But money and care decisions affect each other. Paying for care at home, selling a house or moving into a care home all involve both.

So our questionnaire offers two matching clauses. You only see them if different attorneys hold each LPA.

In your property and financial affairs LPA

What it does. The clause is called Consult health and welfare attorneys. Your finance attorneys keep your health and welfare attorneys up to date on money matters that could affect your health and welfare. For example, they would say if your savings were running low.

In your health and welfare LPA

What it does. The clause is called Consult property and finances attorneys. It is the mirror image. Your health and welfare attorneys keep your finance attorneys informed about welfare matters that could affect your money. For example, they would say if your care needs were about to change.

Why they help.

• No surprises. Neither side makes a big decision without the other knowing it is coming.
• Better planning. Finance attorneys can plan for care costs. Welfare attorneys can plan care that your money will support.
• Fewer stand-offs. When both sides share information early, there is less room for suspicion.

What the law and official guidance say

These clauses build on a duty your attorneys already have. Under section 4(7) of the Mental Capacity Act 2005, anyone deciding what is in your best interests:

must take into account, if it is practicable and appropriate to consult them, the views of (a) anyone named by the person as someone to be consulted on the matter in question or on matters of that kind, (b) anyone engaged in caring for the person or interested in his welfare, (c) any donee of a lasting power of attorney granted by the person, and (d) any deputy appointed for the person by the court, as to what would be in the person’s best interests and, in particular, as to the matters mentioned in subsection (6).

A "donee" is the Act’s word for an attorney. So the law already expects attorneys to listen to the people around you, including your other attorneys. The first clause fills in part (a). It names the person you want consulted. Without it, nobody is named under part (a).

The Office of the Public Guardian’s guide says attorneys should consult family and friends and anyone else who knew or understood your wishes, feelings and views. It also suggests thinking about how many you want to appoint and if they’ll be able to work together.

Without these clauses

• Your attorneys must guess. They still have to consult people, but they decide who. The person you trust most may be left out.
• Two sets of attorneys can work in silos. The law expects them to take each other’s views into account. But nothing in your LPA reminds them to keep each other informed.
• Silence breeds suspicion. Relatives who feel shut out are more likely to complain to the Office of the Public Guardian or go to court.

What happened in Re YW

Yvonne lived in Cornwall and owned a care home. Her estate was worth about £1.2 million [11]. In 2014 she made a property and financial affairs LPA. She appointed two of her sons, Thomas and Kevin, and her solicitor. They could act together or alone [7].

What went wrong. The attorneys did not work together. An Office of the Public Guardian investigator said concerns had been raised that the attorneys were not cooperating with one another [17]. He also said that Longstanding difficulties between Thomas and Kevin have made it impossible for them to agree on anything. That had led to significant and unnecessary professional costs [17].

Kevin told the court he could no longer work with Thomas and Helen French. In his view, he and his sister both wanted their mother to stay at home, while their brothers wanted her in a nursing home [22]. The solicitor attorney said she had not even known that Kevin was willing to resign [24]. The Public Guardian asked the court to revoke the LPA [16].

What the court decided. Senior Judge Lush found that the animosity between the two remaining attorneys, Thomas and Kevin, has created an impasse. It was having an adverse effect on the management of YW’s property and financial affairs [36]. The court can only revoke an LPA if the donor lacks capacity to revoke it herself [39]. The evidence on that was unclear. So the judge suspended the attorneys and made Yvonne’s daughter interim deputy while a further report was obtained [40] [42].

The judge said the solicitor attorney had a thankless task. She had tried to mediate between the brothers and ran up a considerable amount of costs before stepping down [42].

The lesson. An LPA depends on the people running it talking to each other. In Re YW they stopped. The result was a court case, wasted money and a judge deciding who should run Yvonne’s affairs. No clause can make people get on. But choosing attorneys who will work together, and writing down how you want them to share information, gives them a better start.

If you are still deciding who should hold which LPA, see our guide on which LPA you need. Our guide to your home and care covers the decisions where money and welfare meet.

Preference or instruction?

All three clauses are preferences. The official guide says preferences are what you’d like all your attorneys to think about when they make decisions for you. Instructions tell your attorneys what they must do.

A preference suits these clauses. Your attorneys should consult only where it is practicable and appropriate, which is also what the law says. A strict instruction could stop your attorneys acting in an emergency, or if the named person could not be reached.

This article is for general information and is not legal advice. If you are worried about attorneys who are not working together, please get in touch.

Sources

• Mental Capacity Act 2005, section 4 on legislation.gov.uk. Best interests, including the duty to consult in section 4(7).
• Mental Capacity Act 2005, section 22 on legislation.gov.uk. The court’s power to revoke an LPA.
• LP12: Make and register your lasting power of attorney, Office of the Public Guardian. Preferences, instructions and best interests.
• Re YW [2016] EWCOP 18 on Find Case Law. Senior Judge Lush, 24 March 2016.
• Re YW [2016] EWCOP 18 on BAILII