Acting as an Attorney: The Dos and Don'ts
A Lasting Power of Attorney ('LPA') is a legal document which allows the 'Donor' to appoint third party attorneys to act on their behalf and make decisions if they become unable (or sometimes simply do not wish) to make certain decisions for themselves in the future. When acting as an attorney, there are strict rules to follow which are laid down in the Mental Capacity Act 2005
Below are some of the key things attorneys need to consider before making decisions on behalf of the Donor:
- It is vital for all attorneys to keep the Donor's money and property separate from their own.
- It is advisable to keep a record of accounts and receipts.
- All decisions made on behalf of the Donor should be made in the Donor's best interests. For instance, attorneys must:
- Consider the Donor's past and present feelings, beliefs and values;
- Consult with the Donor's close relatives;
- Respect the Donor's confidentiality;
- Always check with the Donor themselves as they may have an opinion on the decision, or be able to make the decision themselves.
- Always act in good faith.
- An attorney can only act when the Lasting Powers of Attorney which appoints them has been registered with the Office of the Public Guardian and they can only act if the Donor has lost mental capacity.
- When the Lasting Powers of Attorney is registered and the Donor has lost mental capacity, the following types of decisions can be made on behalf of the Donor:
- Buying/selling a property;
- Operating bank accounts and paying bills;
- Claiming/receiving/using benefits for the Donor's benefit;
- Investing the Donor's savings;
- Insuring & maintaining the Donor's property;
- Purchasing items and equipment for the Donor.
- All attorneys have important duties and responsibilities which are set out in the Mental Capacity Act 2005 and explained in the Code of Practice.
- If you need further powers an application can be made to the Court of Protection and it is advisable to seek legal advice to assist you with this. You must comply with the directions of the Court of Protection.
- Attorneys must not act on the Donor's behalf if the Lasting Powers of Attorney has not been registered with the Office of the Public Guardian.
- Attorneys must not take advantage of their position or benefit themselves.
- Attorneys are not permitted to pay themselves a salary or hourly rate for the 'trouble' of acting as an attorney.
- Attorneys must be careful about making any gifts from the Donor's funds as this may result in an action against the attorney by the Court of Protection. Attorneys should seek legal advice before making gifts as there are strict rules to follow with regard to making gifts on someone else's behalf.
- Decisions cannot be delegated; they must be made by the Attorney themselves.
- Attorneys cannot act on behalf of the Donor until the Lasting Powers of Attorney is registered.
- Attorneys cannot act if the Donor has not lost mental capacity, unless they have given consent for them to act.
- A person should not be treated as having lost capacity just because they make a bad decision.
- Attorneys must not make decisions on behalf of the Donor which the Lasting Powers of Attorney does not authorise them to make.
- Attorneys must not make decisions about the Donor's personal care if they are only authorised to act under the Property & Financial Affairs Lasting Powers of Attorney. Separate Health & Welfare Powers of Attorneys are available for personal welfare decisions.
Our dedicated team of Wills, Trusts and Probate solicitors have a wealth of experience in drafting and advising on Lasting Powers of Attorney, contact us today to discuss your individual requirements in further detail, on 01603 693500 or email us using 'Make an enquiry' form appointments available at our Norwich, North Walsham and Sheringham offices.