Lasting power of attorney - health and welfare. I think we've made an error...

CKF1980

Hello,

Following the death of my father at the start of the year, my mum was insistent on establishing LPAs, both the Property & Finance one and the one regarding Health & Welfare. We completed the forms ourselves but, for whatever reason, I think we've made the wrong choice about how the attorneys should make decisions with regards to the H&W LPA.

I know this should have been picked up before now, but the H&W LPA arrived this week and under section 3 we have selected 'jointly', with me and my brother listed as attorneys and there being no replacements. Am I correct in understanding that if my mum lost capacity tomorrow and then say my brother (or me) died/was unable to act as an attorney after that, the LPA would fail? We do have the following in section 7 instructions: 'If one attorney dies or is no longer able to act, the other attorney must make decisions alone' but I assume this wouldn't change a thing in the circumstances I've just outlined?

We ended up choosing 'jointly' because mum wants us to make all the decisions together, but maybe we should have chosen 'jointly and severally' and outlined similar section 7 instructions to ensure we do this as much as possible? If the current instructions are worthless then I'm surprised the OPG didn't pick this up; not to blame them, if it's a mess up then it's a collective one. I'll blame the grief.

Other information: the Property & Finance LPA has me as the sole attorney and my brother as a replacement.

Is our best/only option to cancel the H&W LPA and pay the £82 and complete a new one?

Thanks in advance.

sheramber

 Am I correct in understanding that if my mum lost capacity tomorrow and then say my brother (or me) died/was unable to act as an attorney after that, the LPA would fail? We do have the following in section 7 instructions: 'If one attorney dies or is no longer able to act, the other attorney must make decisions alone' but I assume this wouldn't change a thing in the circumstances I've just outlined?

Why would it not apply?

CKF1980

sheramber said:

 Am I correct in understanding that if my mum lost capacity tomorrow and then say my brother (or me) died/was unable to act as an attorney after that, the LPA would fail? We do have the following in section 7 instructions: 'If one attorney dies or is no longer able to act, the other attorney must make decisions alone' but I assume this wouldn't change a thing in the circumstances I've just outlined?

Why would it not apply?

As I understand it, the LPA would fail because all decisions are joint ones and without me or my brother then joint decisions can't be made.

Keep_pedalling

Jointly and severally is the normal recommendation, because as you correctly surmise,  if one of you becomes incapacitated or dies the LPAs fails.

baser999

As previous poster has said, jointly and several is the preferred option, allowing one attorney to act alone. If you elect for the joint route, it’s suggested you nominate others who can act in the place of any attorney that’s not available. Check if you can add those nominees

CKF1980

Thankyou for the replies, everyone. It looks like we will have to submit a new LPA.

As my mum (ideally) wants us to make joint decisions, I assume we could put something in the section 7 along the lines of 'the attorneys must try and make all decisions together unless it isn't practicable'? 

I realise something concrete about joint decisions could be put in if we used the third option (joint for some decisions...) but I assume we'd potentially run into an issue again if one of the attorneys died, so it looks like 'jointly and severally' is the best option for us.

elsien

It may help if your mother considers making an advance decision/advance statement so that she is making clear now what treatment she would want in the future, rather than you and your brother, having to decide for her.

CKF1980

elsien said:

It may help if your mother considers making an advance decision/advance statement so that she is making clear now what treatment she would want in the future, rather than you and your brother, having to decide for her.

Thankyou, that's good advice.

There are a couple of wishes specified on the LPA and we would absolutely adhere to them, but if it covers bases and settles her mind then we will do that.

Thanks again.

elsien

This is a good website for information and what sort of things your mum might need to think about. 

https://compassionindying.org.uk/how-we-can-help/

Despite the name, everyone should consider making a living will because we none of us know what might be round the corner.

Malthusian

CKF1980 said:

As my mum (ideally) wants us to make joint decisions, I assume we could put something in the section 7 along the lines of 'the attorneys must try and make all decisions together unless it isn't practicable'?

Don't. Keep it simple. 
Let's say I'm (e.g.) the manager at your mother's care provider, and I need you to make a decision about her care. One of you gives me an instruction. Do I want to spend my time trying to find out whether it was "practicable" for the other attorney to also give the instruction and therefore whether I can follow it or not?
There is nothing stopping you and your brother from both signing / giving healthcare instructions jointly when the POA says "joint and several". You would be gold-plating the instruction but there is nothing wrong with gold plating. You can tell your mother verbally that you will try to do so as far as possible. There is no good reason to tie yourselves up in knots in the POA itself.
If a time ever comes when you and your brother disagree about your mother's care, then it won't matter whether the POA is "joint only" or "joint and several". Either way, your mother's healthcare providers will have to disregard both of you and either make their own decision about what is in your mother's interests, or go to the Court of Protection.

CKF1980

Malthusian said:

CKF1980 said:

As my mum (ideally) wants us to make joint decisions, I assume we could put something in the section 7 along the lines of 'the attorneys must try and make all decisions together unless it isn't practicable'?

Don't. Keep it simple. 
Let's say I'm (e.g.) the manager at your mother's care provider, and I need you to make a decision about her care. One of you gives me an instruction. Do I want to spend my time trying to find out whether it was "practicable" for the other attorney to also give the instruction and therefore whether I can follow it or not?
There is nothing stopping you and your brother from both signing / giving healthcare instructions jointly when the POA says "joint and several". You would be gold-plating the instruction but there is nothing wrong with gold plating. You can tell your mother verbally that you will try to do so as far as possible. There is no good reason to tie yourselves up in knots in the POA itself.
If a time ever comes when you and your brother disagree about your mother's care, then it won't matter whether the POA is "joint only" or "joint and several". Either way, your mother's healthcare providers will have to disregard both of you and either make their own decision about what is in your mother's interests, or go to the Court of Protection.

Thank you for your considered reply. That's very helpful and is much appreciated.