No. Preferences and Instructions are optional.
If you do not include any, your Attorneys will still be able to act in your best interests under the Mental Capacity Act. However, adding Preferences or Instructions can help guide your Attorneys and make your wishes clearer.
Common mistakes include:
- Making Instructions too restrictive or unrealistic.
- Including unlawful Instructions, such as asking an Attorney to act outside their legal powers.
- Using vague or unclear wording that could be misinterpreted.
- Repeating information that already applies automatically under the law.
- Including wishes that conflict with other legal documents.
Clear and well considered wording helps avoid delays or problems when the LPA is registered or used.
Preferences in a Health and Welfare Lasting Power of Attorney (LPA) are things the LPA donor would like, but they aren’t legally binding. For example, preferences could be things like wanting to live near family or friends, getting regular haircuts or manicures, exercising a few times a week, or donating to charity.
Examples of Instructions include:
- My Attorneys must follow my advance decision to refuse treatment.
- My Attorneys must consult my named GP where possible.
- My Attorneys must not consent to life sustaining treatment if I have stated this in my LPA.
Health and Welfare Instructions should be considered carefully, as overly restrictive wording can limit practical decision making.
Examples of Preferences include:
- I would like my Attorneys to consult my accountant before making major financial decisions.
- I prefer my savings to remain invested where possible rather than held in cash.
- I would like my Attorneys to consider keeping my home rather than selling it unless necessary.
Preferences give guidance but allow flexibility if circumstances change.
Examples of Instructions include:
- My Attorneys must keep my finances separate from their own.
- My Attorneys must provide annual financial accounts to a named person.
- My Attorneys must not make gifts beyond the limits allowed by law.
Instructions must be clear and realistic. If an Instruction is unclear or unlawful, the LPA may be rejected or difficult to use.
Preferences express how you would like decisions to be made, but they are not legally binding.
Instructions are legally binding and must be followed by your Attorneys, as long as they are lawful and practical.
Your wishes are what you would like to happen. Your best interests are the legal standard attorneys must follow when making decisions for you.
Under the Mental Capacity Act, attorneys must always act in your best interests. This means they must consider your past and present wishes, your beliefs and values, and the views of people who know you well. However, they must also balance these wishes against practical, medical, financial and legal factors at the time a decision is needed.
Preferences allow you to guide your attorneys about what matters to you. Instructions legally bind your attorneys and must be followed unless they are unlawful or impossible. Best interests sit above both and act as the final safeguard if circumstances change.
If preferences are unclear, attorneys must interpret them in a way that best reflects your values and intentions.
If preferences contradict each other or conflict with an instruction, the instruction takes priority because it is legally binding. If an instruction cannot be followed, for example because it is impractical or illegal, the attorney must act in your best interests instead.
Unclear or contradictory wording can also cause problems during registration. The Office of the Public Guardian may raise questions or delay registration if the meaning is not clear. This is why clear, specific wording is important and why professional review can help prevent issues later.
Instructions that are too restrictive, unclear or unrealistic can prevent attorneys from acting when decisions are needed.
If an instruction cannot be followed, attorneys may need to apply to the Court of Protection, causing delays and extra costs. Clear, flexible wording helps ensure your wishes can be followed in real life situations.