Do you know what it means to be an Attorney?
What is a Lasting Power of Attorney (‘LPA’)
An LPA is an important legal document that enables an individual (the ‘Donor’) to appoint someone (an ‘Attorney’) to act on their behalf in relation to their property and financial affairs (‘P&FA’) and/or health and welfare (‘H&W’) matters, if they are unable to deal with such matters themselves at some point in the future.
Important considerations before agreeing to be an Attorney
You may have been appointed as an Attorney under an LPA or perhaps you have been asked to be somebody’s Attorney. Being an Attorney requires you to take on certain responsibilities and to act in a particular way.
Your role as an Attorney should not be taken lightly and it is strongly recommended you take legal advice on your role and responsibilities before you agree to take on the role.
Here, we set out some of the many considerations you need to bear in mind when acting as an Attorney for another individual under an LPA:
- When making decisions you must follow the principles set out in the Mental Capacity Act 2005 and have regard to its Code of Practice. For example, you must assume that the Donor can make their own decisions, unless it is established that they cannot do so because they lack mental capacity.
- The Donor may have included restrictions or conditions (‘instructions’) and/or guidance (‘preferences’) in the LPA which sets out how you should make decisions. It is important that you follow these. If you exceed your authority, you could be removed as Attorney. If you have any doubt about how you should make decisions, you should seek professional legal advice.
- In connection with an LPA for P&FA, you may only make limited gifts on ‘customary occasions’, such as religious festivals, birthdays, and weddings, provided it is for a friend or relative (including yourself).
When acting under an LPA for P&FA, you should not open an account in your own name without identifying that the asset belongs to the Donor, as this may cause complications with your own tax and financial affairs.
- Similarly, you must not use the Donor’s money or property for your own benefit, even if it is a loan or you believe, if they had mental capacity, they would agree to this. Such action must be authorised by the Court of Protection. It is better to avoid a problem by seeking legal advice.
- You are not allowed to be paid for acting as an Attorney, unless the Donor has authorised it within the LPA. If you believe you should be recompensed for your role as Attorney, you should apply to the Court of Protection for this to be authorised. At Bolt Burdon Solicitors, we can assist with such an application.
Unfortunately, Attorneys do make mistakes by misusing their powers. However, much of this comes down to misunderstanding the role of the Attorney and how the powers under an LPA should be correctly exercised.
If you would like further assistance on your role as an Attorney or are looking to make a Lasting Power of Attorney for yourself please contact Vaishali Kapadia on 020 7288 4752 or at email@example.com. or a member of our Wealth and Estate Planning team.