If someone appoints you as an attorney under a Lasting Power of Attorney (LPA), you may feel a little overwhelmed by the responsibility involved. You will have to make important decisions about a relative’s or friend’s finances or welfare. However, with a clear understanding of the position and its duties, you can perform the role appropriately and in the donor’s best interests.
Here, we offer guidance to those who have been appointed as an LPA attorney. You do not need to have legal experience to act as an attorney but it can help to receive guidance and advice from a specialist Power of Attorney Lawyer if you have any concerns. If you wish to discuss further any of the issues covered in this guide, please do not hesitate to contact our team.
What is a Lasting Power of Attorney (LPA)?
An LPA is a legal document that gives one person (the attorney) the legal authority to make decisions on behalf of another person (the donor). LPAs are made because the donor no longer wishes to make the decisions his or herself or because they are no longer able to do so (because of a lack of mental capacity). The LPA will set out details of the type of decisions the attorney can make and in which circumstances.
There are two types of LPA:
- A health and welfare LPA
- A property and financial LPA
Health and welfare LPA
A health and welfare LPA will only come into effect if the donor no longer has mental capacity. The attorney can make decisions on matters such as:
- Where the person should live
- What medical treatment they should receive
- What they should eat
- Who they can have contact with
- What type of activities they can take part in
Property and financial LPA
A property and financial LPA can take effect either before or after the donor has lost mental capacity. The attorney can make decisions on matters such as:
- Collecting benefits
- Paying bills
- Buying or selling property
- Carrying out repairs on a property
- Making or selling investments
With property and financial LPAs, the donor can choose to have the attorney make all financial decisions on their behalf or they can opt to retain decision-making for specific matters.
Should I agree to be an attorney?
Before accepting, you should think carefully about the responsibilities of acting as an attorney for a family member or friend. You will need to make difficult decisions about that person’s finances and care. If you do not believe you have the skills or time to carry out the role well, you should let the donor know so they can make other arrangements in good time.
When does someone lack mental capacity?
Generally, if someone can make decisions for themselves, they are said to have mental capacity. If, on the other hand, they cannot understand the issues involved and the impact of the decision, they lack mental capacity.
A lack of capacity can occur for several different reasons, for example, due to:
- Dementia
- A stroke
- Side effects from medical treatment
- Brain injury
- Alcohol or drug misuse
- A learning disability
- Mental health problems
Someone will lack capacity if they are unable to do one or more of the following things:
- Understand information given to them in respect of a particular decision
- Retain information long enough to make the decision
- Weigh up available information to make a decision
- Communicate their decision
How do I know if someone lacks mental capacity?
As a first step, you should always assume that an adult can make their own decisions unless it is established that they cannot. Attorneys must have a reasonable belief that the donor lacks capacity before acting on their behalf, based on the criteria detailed above. You will not usually need a professional, such as a doctor, to assess someone's capacity, but this might be necessary if it is specified in the LPA, if someone seeks to challenge your decision, or if a decision has serious consequences.
Before deciding that someone lacks capacity, you must take steps to allow them to make decisions themselves. Ask yourself questions such as:
- Does the person have all the information they need to make a decision?
- Could the information be explained in a way that would make it easier for the person to understand?
- Have you tried different methods of communicating with the person, such as non-verbal communication?
- Could someone else help you communicate with the person, such as a family member, advocate or care?
- Is the person’s understanding better at particular times of the day?
- Does the person feel more comfortable discussing things in a particular place?
- Does the decision need to be made now, or could it wait until the person is better able to make the decision themselves?
When should I start acting as an attorney?
Before you can begin acting as an attorney, the LPA must be registered with the Office of the Public Guardian (OPG). This will take eight to ten weeks provided there are no mistakes made in the application. The LPA will be registered when the OPG has stamped the application as valid.
Before the LPA is registered, you should speak with the donor about their wishes so that once you have the authority, you can make decisions in their best interests. This might involve discussing how they would like to use their money, or what treatments they would be happy to receive if they become seriously ill.
As mentioned above, the two different LPAs allow decisions to be made at different times. With a health and welfare LPA, you can only start making decisions when the donor no longer has capacity. For property and financial LPAs, you will be able to start making decisions while the donor still has capacity if they permit you to do so.
What duties does an attorney have?
As an attorney, you are required under law to consider the Mental Capacity Act Code of Conduct. Attorneys have a duty to:
- Act in the donor’s best interests
- Apply a particular standard of care and skill – known as a duty of care – when making decisions
- Carry out the donor’s instructions as set out in the LPA
- Help the donor to make decisions themselves, where possible
- Act in good faith
- Respect confidentiality
- Follow any directions from the Court of Protection
- Not give up the role without informing the donor and the court
If you are acting as an attorney in respect of a property and financial LPA, attorneys also have a duty to:
- Keep accounts
- Ensure the donor’s money and property are kept separate from their own
You must understand and comply with your legal responsibilities. If any action you take results in the donor suffering loss, you may be ordered to compensate them. Further, if you mistreat or neglect the donor, you could be criminally liable.
What does it mean to ‘act in the best interests’ of the donor?
The Mental Capacity Act 2005, which deals with LPAs, states that attorneys must act in the best interest of the person who lacks capacity. To ensure that you are doing so, you should consider the following factors:
- Identify all relevant circumstances before making a decision – think about what the donor would consider if they were making the decision themselves
- Encourage the donor to participate in the decision-making process
- Think about whether the donor may regain mental capacity in the future – if you think they might, consider postponing the decision until they can decide themselves
- Consider the donor’s past and present wishes, feelings, beliefs and values
- Take account of the views of those who are close to the donor, such as family members, friends and carers
- Avoid discriminating against the donor by making assumptions about what is in their best interest based simply on their age, condition, appearance or behaviour
Can a donor appoint more than one attorney?
Yes, more than one attorney can be appointed. This can work in one of two ways:
Joint attorneys
Attorneys that are appointed to work together are called joint attorneys. This means they will always have to make decisions on behalf of the donor together. A benefit of joint attorneys is that it is more difficult for an attorney to act fraudulently or make a decision that is not in the best interests of the donor. However, if one of the attorneys dies or becomes unable to carry out their role, the LPA comes to an end.
Joint and several attorneys
Joint and several attorneys are appointed to act together and individually. This means that a single attorney can decide on behalf of the donor as if they were the only attorney, and this decision will be valid. It also means that, if one of the attorneys dies or cannot continue in their role, the LPA will continue.
What can I do if I disagree with the decision of another attorney?
If you disagree with the decision of another attorney, or if you believe they are acting outside of their powers, you should raise your concerns with them directly. If you cannot resolve the matter between you, you should raise your concerns with the OPG. If you decide to do this, you must be prepared to produce evidence to support your claim.
What checks will be carried out on me if I am acting as an attorney?
If another person has concerns about the way you are carrying out your role, they can raise these with the OPG and the Court of Protection. They may then:
- Arrange to visit you and the donor together, or meet with the donor alone
- Contact other people including the donor’s family, care workers or bank
They can then stop you from acting as an attorney if they can prove you have:
- done something the LPA says you cannot;
- failed to do something you were instructed to do in the LPA;
- failed to act in the best interests of the donor;
- misused the donor’s money or made decisions to benefit yourself;
- mistreated the donor; or
- pressured or tricked the donor into making the LPA.
Contact our Power of Attorney Solicitors in London, Surrey and Middlesex
If you are considering agreeing to act as a loved one’s attorney and would like further guidance about the rules and responsibilities that apply, speak to one of our Power of Attorney Solicitors today. To arrange an initial appointment, call us directly on 020 8890 2836 or complete our online enquiry form.
