Acting as an Attorney under a Lasting Power of Attorney – Some Help And Guidance
In her latest Timms Blog, Wills and Probate Solicitor Anna-Louise Bradley discusses “Acting as an Attorney under a Lasting Power of Attorney”
You can make decisions on someone’s behalf if they appoint you as their Attorney under a Lasting Power of Attorney (LPA) (or if signed before 1st October 2007 an Enduring Power of Attorney (EPA).
The person who appoints you is called the ‘Donor’.
What Type Of Decisions Can I Make As An Attorney?
The types of decisions you make depend on whether you are an Attorney under a:
- Property & Affairs LPA or a
- Health & Welfare LPA.
You must have a registered LPAbefore you can start acting as an Attorney. The LPA is registered when the Office of the Public Guardian (OPG) has stamped it with ‘VALIDATED-OPG’.
You can prepare before you start by talking to the Donor so you are ready to make decisions in their best interests. For example, ask about their plans for their money, or how they want to be cared for if they become seriously ill.
What Must I Do Before Making Decisions As An Attorney?
Before making any decisions as an Attorney you must:
- Follow any instructions the Donor included in the LPA
- Consider any preferences the Donor included in the LPA
- Help the Donor make their own decisions as much as they can
- Make any decisions in the Donor’s best interests
- Respect their human and civil rights
What If There Is More Than One Attorney?
If you are not the only Attorney, check the LPA document and it will tell you whether you must make decisions:
- ‘Jointly’ – this means all the Attorneys must agree
- ‘Jointly and severally’ – this means you can make decisions together or on your own
- The LPA may tell you to make some decisions ‘jointly and others’ ‘jointly and severally’.
The Role Of A Property And Financial Affairs Attorney
As a property and financial affairs Attorney, you make (or help the donor make) decisions about things like:
- Money, tax, and bills
- Bank and building society accounts
- Property and investments
- Pensions and benefits
You must keep the Donor’s finances separate from your own unless you have already got something in both of your names like a joint bank account or you own a home together.
Before you can manage the Donor’s account, you must show the bank the original registered LPA or a copy of it signed on every page by the donor, a solicitor, or notary. You will also have to show the bank proof of your name and address.
Unless the LPA states otherwise, you can spend money on:
- Gifts to a Donor’s friend, family member, or acquaintance on occasions when you would normally give gifts (such as birthdays or anniversaries)
- Donations to a charity that the Donor wouldn’t object to, for example, a charity they’ve donated to before
You must apply to the Court of Protection for any other type of gift or donation, even if the Donor has given them before.
You can apply for a Statutory Will if the Donor needs to make a Will but cannot do it themselves. But you can not change a Donor’s Will.
The Role Of A Health and Welfare Attorney
As a health and welfare Attorney, you make (or help the Donor make) decisions about things like:
- Daily routine, for example, washing, dressing, and eating
- Medical care
- Where the donor lives
Check the LPA for instructions about refusing or consenting to treatment.
You’ll need to:
- Show the LPA to care staff
- Sign medical consent forms
- Make decisions in the Donor’s best interests
You can’t always make decisions about the Donor’s medical treatment, for example, if the Donor’s made a Living Will or has been Sectioned.
Keep a record of:
- Important decisions you make and when, for example selling the Donor’s home or agreeing to medical treatment
- The Donor’s assets, income, and how you spend their money – if you’re their finance and property affairs attorney
Include details of who you asked for advice and any disagreements.
What Can An Attorney Claim Expenses For?
You can only claim expenses for things you must do to carry out your role as an Attorney, for example, hiring a professional to do things like fill in the Donor’s tax return or travel costs.
You can be ordered to repay the Donor’s money if you misuse it or make decisions to benefit yourself.
The Office of the Public Guardian and Court of Protection can check your decisions. They may do this by:
- Arranging a visit with you and the Donor together, or the donor alone
- Contact other people such as the Donor’s family, bank, or care workers
They can investigate and stop you from acting as an Attorney if, for example:
- You’ve done something the lasting power of attorney (LPA) says you can’t
- You haven’t done something the LPA has instructed you to do
- You haven’t been acting in the Donor’s best interests
- Or you misuse the Donor’s money or make decisions to benefit yourself
When Does The Lasting Power Of Attorney End?
The lasting power of attorney (LPA) ends when the donor dies, and you should inform the OPG.
You can choose to stop acting as an Attorney in some circumstances, this is called ‘disclaiming’ an Attorneyship.
There are also some cases in which the law requires you to stop acting as an attorney, such as divorce or bankruptcy.
For any further advice please contact me on 01283 214 231 or via email at a.bradley@timms-law.com. Alternatively, visit our website here.
October 2021