Your home and where you live

Your LPA can record where you want to live if you can no longer decide for yourself. You can ask your attorneys to check with your doctor before selling your home or moving you into a care home. You can also ask to stay near your family, or to move into the same care home as someone you love. These are preferences. Your attorneys must consider them, but the final test is always what is in your best interests at the time.

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

Should your attorneys ask your doctor before selling your home?

What it does. This preference goes in your property and financial affairs LPA. If your attorneys think you lack the mental capacity to decide about selling a house you own, they consult your doctor first.

Why it helps.

• It adds a medical view. Selling your home is a big step. Your attorneys hear from someone who knows your health before they act.
• It protects your attorneys. If a relative questions the sale later, your attorneys can show they followed your wishes and took advice.
• It follows the official model. The Office of the Public Guardian uses almost the same wish as an example preference in its guide.

Should your attorneys ask your doctor before moving you into a care home?

What it does. This preference goes in your health and welfare LPA. It says you do not want to move into a care home unless your doctor thinks you can no longer live safely at home, even with support. Your attorneys consult your doctor before deciding.

Why it helps.

• It puts your view on record. Many people want to stay at home for as long as they can. This says so in your own LPA.
• It asks the right question. The test is not whether care at home is harder. It is whether you can live there safely with support.
• It gives your attorneys something to point to. Care staff and social workers can see clearly what you wanted.

Can you ask to live close to your family?

What it does. This health and welfare preference asks that you stay living as close as possible to your immediate family.

Why it helps. A move for care can take someone far from the people who visit them. This preference asks your attorneys to weigh distance from family when they choose where you live. The official guide gives a similar example, a wish to live within five miles of a sister.

Can you move into the same care home as your partner?

What it does. If you and a person you name both need care, this health and welfare preference asks that you move into the same care home. If possible, you would share a room.

Why it helps. Couples are sometimes split up when both need care at once. This tells your attorneys that staying together matters to you. It cannot guarantee a place. A home may not have room for two, or may not meet both people’s needs. The other person also has their own say, or their own attorneys. Your attorneys can only do their best within those limits.

What the law and official guidance say

Anyone deciding for you must act in your best interests. Section 4(6) of the Mental Capacity Act 2005 lists what they must consider. It includes the person’s past and present wishes and feelings (and, in particular, any relevant written statement made by him when he had capacity). A preference in your LPA is that kind of written statement. It does not decide the matter. It is evidence that must be weighed.

The official guide puts it simply. Preferences are what you’d like all your attorneys to think about when they make decisions for you. It adds: Your attorneys don’t have to follow them but should bear them in mind.

Timing matters too. Under section 11(7)(a) of the same Act, a health and welfare attorney can only decide about your welfare where you lack capacity, or they reasonably believe you do. The guide says the same: Attorneys can only make decisions under a health and welfare LPA when you have lost the capacity to make them. So while you can still decide where to live, the choice stays with you.

The official guide’s examples come very close to our clauses. One example preference reads: I’d like my attorneys to consult my doctor if they think I don’t have the mental capacity to make decisions about my house. Another reads: I prefer to live within five miles of my sister.

Without these clauses

• Nobody has your words. Your attorneys, carers and the council must piece together your wishes from memory and conversations.
• Memories differ. One relative remembers you saying you would never go into a home. Another remembers the opposite.
• The safest option can win by default. Without clear evidence of what you wanted, a care home can look like the cautious choice.
• Disputes take time. If people disagree, the Court of Protection may have to decide. That can take many months.

What happened in XX v West Northamptonshire Council

XX was an 89 year old man with Alzheimer’s. He came to England from Jamaica in the 1960s to work [4]. After a collapse and a stay in hospital, the council placed him in a care home in December 2020. His family in Jamaica were not consulted about that placement [13]. He had a large family there, including two sisters [6].

What went wrong. XX had not written down where he wanted to spend his last years. His family said he had often talked about going home to Jamaica [19]. They pointed to his joining a returning residents association [10]. But care staff told the court expert that he never expressed a wish to move or go to Jamaica [16]. His own legal representative argued that the evidence of his intentions was mixed, and that he should stay put [23]. The council also wanted him to stay [24].

The case also took a long time. The application was made in January 2021 and decided in July 2022. The judge said XX’s condition had deteriorated during the proceedings [5]. She found that the delay meant his ability to gain from being in Jamaica has also diminished [29].

What the court decided. Mrs Justice Lieven decided that moving to Jamaica was in his best interests [36]. Her first reason was his wishes. She found that when XX had capacity he did wish and intend to move to Jamaica for his final years [30]. She added: I have little doubt that if he was capable of being asked now, he would say he wanted to live in Jamaica. She also gave weight to family. However good staff in a care home are, they are not the same as being cared for by a loving family [32]. She accepted some physical risk, but found the benefits of family and the place where he wanted to be outweigh the risk [35].

The lesson. XX’s wishes counted for a great deal, but they had to be proved from scraps of evidence, and they were disputed. We cannot say a written preference would have changed what happened. The law does give a written statement made while you had capacity particular mention. Writing your wishes down gives your attorneys and any judge your own words to work from.

Preference or instruction?

All four clauses are preferences, and that is deliberate. Your attorneys must weigh them, but they keep the freedom to act in your best interests when things change. A doctor may be unavailable. Your family may move. A care home may have no shared room. A rigid instruction could leave your attorneys stuck in those situations. The official guide warns that badly worded instructions or preferences can make an LPA unworkable.

Your attorneys can only decide where you live once you cannot decide for yourself. Your preferences also work best alongside your attorneys talking to the people close to you. Our guide to consulting your family and attorneys covers that. If you are not sure which LPA these wishes belong in, see which LPA you need.

This article is for general information and is not legal advice. If your family disagree about where someone should live, or you are an attorney facing that decision, please get in touch.

Sources

• Mental Capacity Act 2005, section 4 on legislation.gov.uk. Best interests, including past and present wishes in section 4(6).
• Mental Capacity Act 2005, section 11 on legislation.gov.uk. Limits on welfare decisions in section 11(7)(a).
• LP12: Make and register your lasting power of attorney, Office of the Public Guardian. Preferences, instructions and example wishes.
• XX v West Northamptonshire Council [2022] EWCOP 40 on Find Case Law. Judgment of Mrs Justice Lieven, 22 July 2022.
• XX v West Northamptonshire Council [2022] EWCOP 40 on BAILII