WillsThe Role and Responsibilities of Attorneys under a Lasting Power of Attorney

A Lasting Power of Attorney (LPA) is a legal document that enables a person (the ‘donor’) to appoint one or more attorneys to make decisions on their behalf should they lose mental capacity. The responsibilities of attorneys under a Lasting Power of Attorney are substantial and governed by a strict legal framework. This article explores the key duties attorneys must uphold and the safeguards designed to protect the donor’s interests.

Who Can Be an Attorney?

Attorneys must be over 18 and have mental capacity. For a Property and Financial Affairs LPA, attorneys must not be bankrupt or subject to a debt relief order. Attorneys are commonly family members, trusted friends, or professionals. Given the authority and responsibility involved, it is essential that the donor has absolute trust in their chosen attorneys.

Key Responsibilities of Attorneys

Attorneys are legally bound to act in the best interests of the donor and must adhere to the principles set out in the Mental Capacity Act 2005 and the accompanying Code of Practice. The main responsibilities include

1. Acting in the Donor’s Best Interests

Attorneys must always act in the donor’s best interests, considering their past and present wishes, feelings, beliefs, and values. For example, If the donor has a close relationship with certain family members or friends, the attorney should facilitate regular contact and visits, provided it is safe and in the donor’s interests. On the other hand, if the donor has previously expressed a wish to avoid contact with a particular individual, the attorney should take this into account.

2. Following the Donor’s Instructions

Attorneys must follow any instructions in the LPA and should take into account any  preferences. For instance, if the LPA specifies that the donor wishes to remain in their own home for as long as possible, the attorney should prioritise this when making decisions about care arrangements.

3. Keeping the Donor’s Money and Property Separate

Attorneys must keep the donor’s finances separate from their own. This means using separate bank accounts and keeping clear records of all transactions. Failure to do so can result in allegations of financial abuse.

4. Keeping Accurate Records

Attorneys are required to keep detailed records of all decisions and transactions made on behalf of the donor. This includes receipts, bank statements, and notes of significant decisions. Good record-keeping protects both the donor and the attorney, and may be required if the Office of the Public Guardian (OPG) requests an audit.

5. Not Delegating Authority

Attorneys cannot delegate their decision-making authority to others unless authorised in the LPA. The LPA can allow for some delegation but does not allow the attorneys to fully delegate their role. While attorneys may seek professional advice where necessary, the ultimate responsibility for decision-making remains with them.

6. Acting Within the Scope of the LPA

Attorneys must not act outside the powers granted by the LPA. For example, an attorney under a Health and Welfare LPA cannot make financial decisions unless they are also appointed under a Property and Financial Affairs LPA.

7. Respecting the Donor’s Capacity

Attorneys must assume the donor has capacity to make a decision unless it is established otherwise. If the donor has capacity for a particular decision, the attorney cannot override their wishes.

8. Duty of Care

Unpaid attorneys are expected to exercise the same care, skill, and diligence as they would in managing their own affairs. Paid attorneys are held to a higher standard of care and skill, and professional attorneys must demonstrate professional competence and adhere to the standards of their profession.

Legal Safeguards and Supervision

Attorneys are supervised by the OPG, which can investigate complaints and, in serious cases, refer matters to the Court of Protection. The court has the power to remove attorneys who fail in their duties or act dishonestly. Criminal penalties may apply in cases of fraud or financial abuse.

Conclusion

Understanding the responsibilities of attorneys under a Lasting Power of Attorney is essential for anyone appointed to this role. Attorneys must act with integrity, diligence, and in strict accordance with the law. Understanding the scope of their powers and the duties imposed by the Mental Capacity Act 2005 is essential to protect the interests of the donor and to avoid legal pitfalls. For donors, careful selection of attorneys and clear instructions within the LPA can help ensure their wishes are respected.

 

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