Being appointed as an attorney under a Lasting Power of Attorney (LPA) is both a privilege and a serious responsibility. If someone you care about has asked you to act as their attorney, or you’re considering appointing someone to act on your behalf, it’s essential to understand the duties and obligations involved.
In this article, we’ll explore the main responsibilities of an attorney, including the legal obligations and ethical considerations you must keep in mind.
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What is a Lasting Power of Attorney (LPA)?
A Lasting Power of Attorney is a legal document that allows someone (the donor) to appoint another person (the attorney) to make decisions on their behalf, should they become unable to do so themselves. There are two types of LPAs:
- Health and Welfare LPA: Covers decisions about the donor’s personal health, medical treatment, and general wellbeing.
- Property and Financial Affairs LPA: Covers the donor’s financial matters, such as managing bank accounts, paying bills, and buying or selling property.
As an attorney, you could be responsible for either or both areas, depending on the type of LPA.
General Responsibilities of an Attorney
When you are appointed as an attorney under an LPA, you are entrusted with making decisions in the donor’s best interests. This responsibility is guided by several legal principles set out in the Mental Capacity Act 2005, which ensures that people who lack capacity are protected. Below are the key duties and obligations you must adhere to:
- Act in the Donor’s Best Interests
Your primary responsibility as an attorney is to always act in the donor’s best interests. This means that every decision you make should prioritise what is best for the donor, rather than what might be easier for you or anyone else. To do this effectively, you should:
- Consider the donor’s past and present wishes, feelings, and beliefs.
- Take into account their values and any preferences they have expressed, either formally (in the LPA) or informally in conversation.
- Consult with family members, close friends, or medical professionals who know the donor well if you’re unsure of their preferences.
- Follow the Donor’s Instructions and Preferences
The donor may have included specific instructions or preferences in their LPA. For example, in a Health and Welfare LPA, they may have stated that they would not want certain types of medical treatment. In a Property and Financial Affairs LPA, they may have set limits on how much money can be spent or specified how their property should be managed.
As an attorney, you are legally bound to follow any instructions provided in the LPA. If the donor has expressed preferences, you should take them into account, even if they are not legally binding instructions.
- Act Within the Scope of Your Authority
An LPA only gives you authority to make decisions within certain areas, depending on the type of LPA. If you are appointed under a Health and Welfare LPA, you can make decisions about the donor’s care, medical treatment, and living arrangements, but you cannot make financial decisions unless you are also appointed under a Property and Financial Affairs LPA.
It’s important to know the boundaries of your legal authority. Acting outside the scope of the LPA, for example by making financial decisions when you are not authorised to do so, can lead to legal consequences, including the potential for the LPA to be revoked.
- Help the Donor Make Their Own Decisions
If the donor still has some capacity to make decisions, it is your responsibility to help and support them in doing so. You should not take over decision-making entirely unless the donor is completely unable to make decisions themselves. The Mental Capacity Act requires attorneys to assume that the donor can make decisions unless it is proven otherwise.
You should:
- Offer as much information and support as possible to enable the donor to make their own decisions.
- Make sure the donor is involved in the decision-making process, even if they can only contribute to part of the decision.
- Keep the Donor’s Finances Separate
If you are managing the donor’s finances, it is critical that you keep their finances entirely separate from your own. This applies even if the donor is a close family member, such as a parent. You must:
- Keep accurate records of any financial transactions you make on the donor’s behalf.
- Avoid mixing your own funds with the donor’s, including using joint bank accounts (unless the donor has specifically instructed you to manage funds this way).
- Be transparent and keep receipts for purchases or payments made using the donor’s money.
If you are unsure about any aspect of managing the donor’s finances, seeking legal advice can help prevent misunderstandings or mistakes.
- Make Decisions Only When Necessary
While an LPA gives you significant power to act on the donor’s behalf, you should only make decisions when necessary. If the donor is still able to make some decisions themselves, or if the situation doesn’t require immediate action, it may be best to wait and allow the donor to participate in their care and financial management for as long as possible.
- Keep Records
As an attorney, you have a duty to keep clear and accurate records of decisions and actions you take on behalf of the donor. This is particularly important if you are handling their financial affairs. Keeping detailed records will protect you from any disputes or accusations of wrongdoing and will help you demonstrate that you have acted in the donor’s best interests at all times.
Financial records should include:
- Bank statements and account details
- Receipts for purchases or payments
- Records of conversations or decisions made about large expenses or investments
- Evidence of any gifts given, such as birthday presents or charitable donations
- Follow the Law on Gifting
As an attorney, you are allowed to make gifts on the donor’s behalf, but only within strict legal limits. You can make gifts to family members or friends on traditional occasions, such as birthdays or weddings, and you can make donations to charities that the donor supports. However, these gifts must be reasonable, based on the donor’s financial situation.
For example, if the donor has a modest income, it would be inappropriate to give large gifts or donate significant sums to charity. If you are unsure about whether a gift is reasonable, you may need to seek permission from the Court of Protection.
What Happens If You Don’t Fulfil Your Responsibilities?
Failing to meet your responsibilities as an attorney can have serious consequences. If you do not act in the donor’s best interests, misuse their funds, or otherwise breach your duties, you may be subject to legal action. The Office of the Public Guardian (OPG) monitors attorneys and can investigate if there are concerns about how you are acting under an LPA.
In some cases, the Court of Protection may revoke your authority as an attorney, and you could be required to repay any funds that have been misused.
Conclusion
Being an attorney under an LPA is a significant responsibility that requires careful consideration of the donor’s wishes and best interests. From making financial decisions to managing health and welfare matters, an attorney plays a vital role in safeguarding the donor’s wellbeing. By understanding your legal obligations and acting with transparency and integrity, you can fulfil your role as an attorney with confidence and care.
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.
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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