The dos and don’ts of acting as attorney

A Lasting Power of Attorney (LPA) is a legal document allowing a person (the Donor) to appoint a third party (an Attorney) to make decisions on their behalf if they lose the capacity to make those decisions, or simply no longer want to manage their own affairs. There are two types of LPA: property and financial affairs and health and welfare. There are strict regulations in place to protect the Donor that an Attorney should always follow, including the following: 

Do 

  1. Keep accurate and detailed records of all financial transactions
    This includes records of all receipts, invoices, financial statements as well as documenting decisions made on behalf of the Donor.  
  1. Seek professional advice where appropriate
    This may be from a solicitor to ensure that you are following the regulations, a financial advisor for investment advice, or an accountant for filing Tax Returns.  
  1. Act in the best interests of the Donor
    Any decision made by an attorney should always be made in good faith and in the Donor’s best interests. Consider the past and present feelings, beliefs of the Donor to assist you.  
  1. Enable the Donor to make their own decisions where possible
    It is possible to have capacity to make one decision but not another. Always consider if the decision is something the Donor could make themselves or do themselves with assistance.  
  1. Make sure that you are claiming all benefits the Donor is entitled to
    An attorney has a duty to check what benefits the Donor is entitled to and to apply for any benefits that are not being claimed. An attorney also needs to notify DWP of any changes to the Donor’s situation.  

Don’t

  1. Mix your own money with that of the Donor
    Always hold the Donor’s money and assets separately in their name and do not mix with your own assets or hold in your sole name.  
  1. Sell the Donor’s property to yourself or another family member without authority from the Court of Protection
    Even if a relative would be purchasing the house at market value an application will need to be made to the Court of Protection for them to authorise the transaction.  
  1. Disregard any instructions from the Donor in the LPA
    The Donor may have set out instructions or restrictions in the LPA. This will always need to be adhered to. Also, check the LPA for any preferences that the Donor expressed and follow these as best you can.  
  1. Act under the LPA whilst the donor has capacity unless authorised by the Donor
    An attorney should only use an LPA without authority if the Donor does not have capacity to make their own decisions. The Donor can instruction the attorney to use the LPA if they still have capacity.  
  1. Use the LPA after the death of the donor
    On the death of the Donor the attorney must immediately cease to act. Authority to deal with the Donor’s affairs passes to the personal representatives of their estate.  

If you would like more information on making a Lasting Power of Attorney, our expert wills and estates team are happy to discuss your options and advise on the best solutions for you and our family. Call 033 3344 9609 or email [email protected] to make an enquiry.

Author: Emma Garfitt, wills and estates.