A power of attorney (POA) is a legal document that allows one person (the donor) to appoint another person (the attorney) to make decisions on their behalf. Powers of attorney are a crucial tool in estate planning, enabling individuals to ensure that their financial, legal, and health matters are managed according to their wishes, particularly if they become unable to make decisions for themselves.
At Blackstone Solicitors, we advise clients across England and Wales on powers of attorney, including their creation, scope, and responsibilities. Understanding the role of an attorney and the legal obligations involved is essential to ensure that the donor’s interests are protected and that the attorney acts appropriately.
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For a free initial discussion on how we can help you deal with the legal implications of creating a lasting power of attorney, get in touch with us today. We are also experienced in dealing with all aspects of Wills and Probate and we will review your situation and discuss the options open to you in a clear and approachable manner. Early expert legal assistance can help ensure you avoid the stress of dealing with these issues on your own. Simply call us on 0345 901 0445 or click here to make a free enquiry and a member of the team will get back to you.
Types of Powers of Attorney
There are several types of power of attorney, each with specific responsibilities and applications:
- Lasting Power of Attorney (LPA)
A lasting power of attorney is designed to cover decisions during the donor’s lifetime. There are two main types:
- Property and financial affairs LPA: Gives the attorney authority to manage financial matters such as paying bills, managing bank accounts, selling property, and dealing with investments.
- Health and welfare LPA: Allows the attorney to make decisions about healthcare, medical treatment, living arrangements, and other personal welfare issues.
LPAs must be registered with the Office of the Public Guardian (OPG) before they can be used.
- Ordinary Power of Attorney
An ordinary power of attorney is usually created for a temporary period, such as when the donor is abroad or unable to manage affairs for a limited time. It is less formal than an LPA and becomes invalid if the donor loses mental capacity.
- Enduring Power of Attorney (EPA)
Enduring powers of attorney were used before October 2007 to cover financial decisions. They have largely been replaced by LPAs but remain valid if registered with the OPG. EPAs cannot cover health and welfare decisions.
Key Responsibilities of an Attorney
Being appointed as an attorney carries significant responsibilities. The attorney must act in the best interests of the donor and comply with legal requirements. Failure to do so can result in civil or criminal liability.
- Acting in the donor’s best interests
An attorney must always make decisions that benefit the donor and reflect their preferences, values, and previously expressed wishes. This is the overarching principle of the role.
Key points include:
- Considering the donor’s past and present wishes
- Taking into account the views of family members and carers
- Making decisions that maintain the donor’s dignity and well-being
- Following the donor’s instructions
If the donor has provided instructions within the power of attorney document, these must generally be followed, provided they are legal and feasible. This can include:
- Specifying how money should be spent
- Setting limits on the sale of property
- Indicating preferred healthcare treatments
- Keeping accurate records
Attorneys must maintain detailed records of all decisions and transactions made on behalf of the donor. This includes:
- Receipts and invoices
- Bank statements and account records
- Notes of decisions regarding healthcare or living arrangements
Accurate record-keeping ensures transparency and can protect the attorney if their decisions are ever questioned.
- Avoiding conflicts of interest
Attorneys must avoid situations where personal interests conflict with the interests of the donor. For example, an attorney cannot:
- Use the donor’s funds for their own benefit
- Make decisions that benefit one beneficiary over another unfairly
- Enter into transactions where they personally gain at the donor’s expense
Where a potential conflict arises, the attorney should seek legal advice and, in some cases, obtain the consent of the Court of Protection.
- Acting within the scope of authority
A power of attorney is limited to the powers granted by the document. An attorney cannot:
- Make decisions outside the authority specified in the LPA or EPA
- Override court orders or statutory requirements
- Act in ways that the donor would not have approved
Exceeding these powers can be considered abuse of the role and may have serious legal consequences.
- Consulting others when necessary
Attorneys should seek advice when needed, particularly in complex financial or medical matters. This may include:
- Consulting healthcare professionals for medical decisions
- Engaging accountants or solicitors for financial or legal matters
- Considering advice from social workers or care providers
Consultation helps ensure that decisions are informed, responsible, and in line with the donor’s best interests.
- Safeguarding the donor’s assets
An attorney is responsible for protecting the donor’s property and finances. This includes:
- Ensuring bills are paid and assets are secure
- Managing investments prudently
- Avoiding unnecessary risks that could deplete the estate
Mismanagement can lead to financial loss for the donor and personal liability for the attorney.
- Acting promptly and responsibly
Decisions often need to be made without delay, particularly in health and welfare matters. Attorneys should act efficiently while balancing careful consideration of the donor’s interests.
Legal and Ethical Considerations
Attorneys are subject to both legal and ethical obligations. These include:
- Fiduciary duty: Acting honestly, reasonably, and in the best interests of the donor
- Accountability: The Office of the Public Guardian can investigate allegations of misconduct or abuse
- Reporting: Attorneys must notify the OPG if they suspect financial abuse, exploitation, or other risks to the donor
- Consent and capacity: Attorneys must always respect the donor’s autonomy while acting appropriately if capacity is lost
Breaching these duties can lead to removal as an attorney, civil claims, fines, or in severe cases, criminal prosecution.
When an Attorney Can Act
The timing of an attorney’s authority depends on the type of power of attorney:
- Financial and property LPA: Can be used as soon as registered, or immediately if specified, and can continue if the donor loses capacity.
- Health and welfare LPA: Can only be used once the donor lacks capacity to make those decisions.
- Ordinary power of attorney: Valid only while the donor has capacity, often for a limited period.
Understanding when you can act is essential to ensure decisions are valid and legally recognised.
How Solicitors Can Assist
The role of an attorney is complex, and legal guidance is often necessary. Solicitors can assist by:
- Drafting powers of attorney accurately to reflect the donor’s wishes
- Advising attorneys on their legal obligations and duties
- Assisting with registration with the Office of the Public Guardian
- Representing attorneys in disputes or allegations of misconduct
- Providing guidance on decision-making, particularly for complex financial or medical matters
At Blackstone Solicitors, we help clients across England and Wales navigate these responsibilities, ensuring that both donors and attorneys understand their rights and obligations.
Final Thoughts
Being appointed as an attorney carries significant responsibilities and requires careful consideration, diligence, and integrity. Attorneys must act in the donor’s best interests, comply with the law, and maintain transparency in all decisions.
Powers of attorney are vital tools for protecting individuals who may lose capacity, enabling trusted people to make decisions on their behalf. However, they also require careful management to prevent abuse, mismanagement, or disputes among family members.
At Blackstone Solicitors, we provide expert advice on all aspects of powers of attorney, helping clients draft, register, and manage LPAs or EPAs correctly. We also guide attorneys on their duties, ensuring decisions are lawful, ethical, and aligned with the donor’s wishes.
How we can help
We have a proven track-record of helping clients create a lasting power of attorney. This also includes all the different types, even if you need more than one. We are a multidisciplinary firm and have all the expertise inhouse to satisfy the most exacting requirements of our clients. We will guide you through all the necessary legal due diligence in a comprehensive and timely manner. We firmly believe that with the right solicitors by your side, the entire process will seem more manageable and far less daunting.
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How to Contact Our Wills and Probate Solicitors
It is important for you to be well informed about the issues and possible implications of creating a Lasting Power of Attorney. However, expert legal support is crucial in terms of ensuring your wishes are met as you would want them to be.
To speak to our Wills and Probate solicitors today, simply call us on 0345 901 0445, or click here to make a free enquiry. We are well known across the country and can assist wherever you are based. We also have offices based in Cheshire and London.
Disclaimer: This article provides general information only and does not constitute legal advice on any individual circumstances.
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