A donor act in the best interests of the person they are making decisions for. They have to follow the mental capacity act code of practice. In particular Chapter 7 from the code of practice. They also have fiduciary duties, that is ways or responsibilities how they should make decisions.
Codes of Practice 7.36 says
If a donor does not restrict decisions the attorney can make, the
attorney will be able to decide on any or all of the person’s property
and financial affairs. This might include:
Who owns the assets and does the Donor have exclusive right over them and what happens to them.
Has the Donor granted authority to anyone else to manage the assets, and does this now clash with the LPA authority.
Will the restrictions and conditions actually work in reality.
Has the Donor left out any assets he does not want subject to the LPA and if so why.
If the LPA is restricted to only becoming usable once registered, and the Donor does not want to register it straight away. Are they aware there will be a 5/6 week gap before the LPA can be used. During this registration period, the Attorney(s) may only maintain the Donor as they are, not make large decisions.
Are there any other documents – wills, trusts, insurances etc which may influence or affect how the LPA operates.
Gifts under the LPA are usually restricted to small amounts, if the Donor wishes to extend (or further limit) these, this needs to be clear on the LPA.
Codes of Practice 7.21 says
LPAs can be used to appoint attorneys to make decisions about
personal welfare, which can include healthcare and medical treatment
decisions. Personal welfare LPAs might include decisions about:
Has the Donor chosen either Option A or B, and signed and had this witnessed.
It can be worth asking why either one of these was chosen, as restrictions, conditions or guidance may be suitable.
Does a separate authority granting access to medical information need to be drafted – it is not usually needed, but worth considering.
Has the Donor made any mention about end of life issues, funeral arrangements, organ donation or other similar matters.
Life sustaining refusal is not euthanasia.
Has the Donor made a Living Will or Advance Decision. The Advance Decision needs to be check as this may clash with the LPA. (See section on which takes precedence).
Craig Ward of Lundie MSc one of our Partners wrote the Law Society’s textbook on Lasting Powers of Attorney from 2016 to 2019 now in its 4th edition. This means Craybeck Law has the countries leading expert on hand to advise you about making your Lasting Power of Attorney
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