Daily life, beliefs and pets in your LPA

Your LPA can tell your attorneys how you like to live day to day. You can record what you eat, how you look after yourself, how active you are, how you practise your faith and who looks after your pets. These are preferences. Your attorneys must take them into account, but the final test is what is in your best interests at the time.

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

Can your LPA record what you eat?

What it does. This preference goes in your health and welfare LPA. You pick one diet: vegetarian, vegan, halal or kosher. Your attorneys, and the carers they deal with, then know what food you want.

Why it helps.

• It is often part of who you are. For many people a diet reflects their faith or their deepest beliefs. It is not a passing taste.
• It is easy to get wrong. A busy care home may not know your rules unless someone tells them.
• It saves your family guessing. They may not know how strictly you keep to it.

Can it cover haircuts and personal care?

What it does. This health and welfare preference asks for regular haircuts, manicures and pedicures. You can choose some or all of them.

Why it helps.

• Looking like yourself matters. How you look affects how you feel, and how others treat you.
• It is easily missed. When care is stretched, small things like nail care can slip.
• Foot care is also health care. Long, untrimmed toenails can make walking painful.

Can it ask for exercise and fresh air?

What it does. This health and welfare preference asks that you exercise whenever you are physically able. It also asks that you spend time outdoors at least once a day, whether or not you can walk.

Why it helps.

• It keeps you connected to the world. A daily trip outside can mean a great deal to someone who spends most of the day indoors.
• It works even if you lose mobility. Time outdoors can mean a wheelchair in the garden. It does not have to mean a walk.
• It gives your attorneys something to ask for. They can point to your written wishes when they speak to a care provider.

Can it protect your religious practice?

What it does. This health and welfare preference asks that you keep attending your local place of worship regularly. You choose a church, gurdwara, mosque, temple or synagogue. It also asks that decisions about your care and treatment reflect your religious beliefs.

Why it helps.

• Faith can be central to daily life. Worship may be how you see friends and keep a routine.
• Your beliefs can shape medical choices. Your attorneys need to know what your faith asks of you.
• It fits what the law already asks. Your attorneys must consider your beliefs and values. This preference tells them what those are.

If you have firm views about life-sustaining treatment, see our guide to medical treatment and end of life.

Can your LPA look after your pets?

What it does. This preference can go in both types of LPA. It asks your attorneys to make sure your pets are properly cared for. If your pets cannot stay at home, your attorneys should find them a suitable new home. They may spend a sum on this that is not unreasonable, given the circumstances and the size of your estate.

Why it helps.

• Pets cannot speak up for themselves. If you go into hospital or a care home, someone has to act quickly.
• It gives your attorneys permission to act. They know you want money spent on your pets’ welfare.
• It keeps the spending in proportion. The amount is tied to what you can afford.

One limit is worth knowing. The law only lets financial attorneys make gifts in narrow cases, such as on birthdays or to a charity you supported. So the safest reading of this clause is that it covers the reasonable costs of rehoming, such as transport or a rescue centre’s fee. A large sum handed to a friend could be treated as a gift. If you want a particular person to take your pets and receive money for their keep, say so in your will as well.

What the law and official guidance say

When someone decides for you because you cannot decide for yourself, they must act in your best interests. Section 4(6) of the Mental Capacity Act 2005 says what they must consider, so far as is reasonably ascertainable:

(a) the person’s past and present wishes and feelings (and, in particular, any relevant written statement made by him when he had capacity),

(b) the beliefs and values that would be likely to influence his decision if he had capacity, and

(c) the other factors that he would be likely to consider if he were able to do so.

A preference in your LPA is exactly that kind of written statement.

The Office of the Public Guardian publishes a guide to making an LPA. It says your attorneys must:

be guided by your personal, political, cultural, moral, or religious beliefs and values when making any decisions for you

Its own example preferences are very close to ours. One is I would like to take exercise at least three times a week whenever I am physically able to do so. Another is Whether or not I am mobile, I would like to spend time outdoors at least once a day. Others are I’d like to have regular haircuts, manicures, and pedicures and I’d like my pets to live with me for as long as possible.

The guide also explains what a preference is. Your attorneys don’t have to follow them but should bear them in mind.

Without these clauses

• Your daily life is left to guesswork. Your attorneys may not know your diet, your faith or your routines.
• Carers may follow their own habits. A care home’s standard menu or timetable may not suit you.
• Family members may disagree. One may remember you as devout, another may not. There is nothing written down to settle it.
• Your pets may be overlooked. In a crisis, nobody may feel they have the right to spend your money on them.

For wishes about where you live, see our guide to your home and care.

What happened in Wye Valley NHS Trust v B

Mr B was 73. He had lived with a serious mental illness for most of his adult life. He had diabetes, and an infected foot that would not heal. Doctors said that without an amputation he would soon die [1]. He lacked the capacity to decide for himself, so the Court of Protection had to decide what was in his best interests.

Mr B had strong religious feelings. He heard the voices of angels, and he did not follow an established religion [19]. He had no next of kin [43]. So the court built its picture of him from his own words, his care coordinator, his nurses and the medical records. The judge also met him in hospital [18]. Mr B told him: I don’t want an operation. [37]

The hospital argued that his wishes deserved little weight, because they were tied up with his illness [39]. Mr Justice Peter Jackson disagreed. He said there is no theoretical limit to the weight or lack of weight that should be given to a person’s wishes, feelings, beliefs and values [10]. A finding that someone lacks capacity is not an "off-switch" for his rights and freedoms [11].

He went on: It is more real and more respectful to recognise him for who he is: a person with his own intrinsic beliefs and values. [13] Mr B’s religious beliefs were an intrinsic part of who he is, and his core quality was his "fierce independence" [43]. The judge refused to authorise the operation. There is a difference between fighting on someone’s behalf and just fighting them [45].

The lesson. Who you are can carry real weight when others decide for you. But someone has to find out who you are. Mr B could still speak for himself. Many people cannot, and their families have to piece it together. A written preference gives them your own words to start from.

We found no reported case about a person’s pets under an LPA. The courts rarely deal with pets. Attorneys rely on the Act and the official guidance instead.

Preference or instruction?

All five clauses are preferences. Your attorneys must weigh them, but they can depart from them if your best interests require it. For example, a daily trip outside may not be safe during a serious illness.

The official guide uses an instruction as its example for a vegetarian diet. An instruction must be followed, but it can make an LPA harder to use if it cannot always be met. If your diet is a strict religious rule that must never be broken, a solicitor can talk you through which form suits you. If you want your family involved in these decisions, see our guide to consulting family and attorneys.

This article is for general information and is not legal advice. If you have firm religious views about your care, or complicated arrangements for your pets, please get in touch.

Sources

• Mental Capacity Act 2005, section 4 on legislation.gov.uk. Best interests, including section 4(6).
• Mental Capacity Act 2005, section 12 on legislation.gov.uk. Gifts by financial attorneys.
• LP12: Make and register your lasting power of attorney, Office of the Public Guardian. Preferences, instructions and example wording.
• Wye Valley NHS Trust v B [2015] EWCOP 60 on Find Case Law. Judgment of 28 September 2015.
• Wye Valley NHS Trust v B [2015] EWCOP 60 on BAILII