202001.23

LPA – overview of the duties when acting as an attorney

If you have been appointed as an attorney for someone under a Lasting Power of Attorney (“LPA”), you can make decisions on their behalf. The person who has appointed you is called the ‘donor’.

The decisions you can make on behalf of the donor will depend on whether you are an attorney under:

  • the LPA for Property and Financial Affairs; or
  • the LPA for Health and Welfare.

Attorney for Property and Financial Affairs

As a Property and Financial Affairs attorney, you are required to make decisions about all financial aspects of the donor’s life including money, tax, bills and property. Remember to keep your own finances separate from the donor’s (unless you already own a property together or have a joint bank account).

If the decision relates to the donor’s living arrangements or daily routine and care, then you will need to discuss this with the donor’s Health and Welfare attorney, if they have one.

Attorney for Health and Welfare

As a Health and Welfare attorney, you will have to make decisions relating to the donor’s daily routine, their accommodation and their care.  This is likely to require you to spend the donor’s money, in which case you will have to consult the donor’s Property and Financial Affairs attorney, if they have one.

The LPA for Health and Welfare may provide instructions on consenting or refusing medical treatment. If the donor has a Living Will (also known as an ‘Advance Decision’) you may not be able to make decisions about the donor’s medical treatment. This will also be the case if the donor has been sectioned.

Registering the LPA

The LPA must be registered with the Office of the Public Guardian (“OPG”) before you can start acting as the attorney. It is a good idea to speak to your donor before you start acting for them about how they want their finances to be managed or how they want to be cared for if they become very ill.

Mental Capacity

The term ‘mental capacity’ means being able to make your own decisions at the time they need to be made. A person can lack mental capacity due to several reasons including a mental health issue, dementia or a learning disability. Please click here for information about what mental capacity is.

The LPA for Property and Financial Affairs may allow you to start managing the donor’s finances while they still have mental capacity. If it doesn’t, then you can only start acting when the donor lacks mental capacity. Under the LPA for Health and Welfare, you can only act when the donor does not have mental capacity.

You must check that the donor has mental capacity to make a decision at the time the decision needs to be made. Remember, just because you believe a decision is wrong does not mean that the donor lacks mental capacity. Additionally, you must not make a decision for the donor if it can wait until they can make the decision themselves.

It is advisable to seek help when checking the donor’s mental capacity, for example from the donor’s GP or another suitably qualified medical professional. The LPA may specifically state the you must have a certificate from a medical professional stating that the donor lacks mental capacity before you can act.

How do I make decisions for the donor?

As the attorney you must:

  • give the donor all the help they need to make each decision before deciding whether or not they have mental capacity to make the decision themselves – for example by giving them plenty of time, removing distractions, and explaining things in different ways to assist their understanding;
  • make any decisions in their best interests – that is the decision must be right for the donor taking into account what they would have decided if they could, their values and their wishes;
  • try to avoid making decisions that restrict the donor’s human and civil rights as far as possible – you must not make decisions on their behalf about voting or their relationships.

You should not make assumptions based on the donor’s age, gender, ethnic background, sexuality, behaviour or health.

More than one attorney

You will need to check the LPA to see if there are other attorneys who can also act for the donor. If there are other attorneys, the LPA will state whether you can act “jointly” or “jointly and severally”: “jointly” means all the attorneys must agree on each and every decision; “jointly and severally” means each attorney can make decisions on their own or together.  Sometimes it can help to make decisions together, especially if it is a difficult decision to make. Remember you can always consult the donor’s family, friends and carers if it might help reach a decision. In case of disagreements, you can consult the OPG, use a mediation service, seek help from social services or ask the Court of Protection to decide about a serious issue.

Expenses

You can only be reimbursed for expenses that you incur in carrying out your role as an attorney. This can include hiring a professional for things like filling in the donor’s tax return, travel costs, phone calls, postage and stationery.

Record keeping

The OPG and the Court of Protection can check your decisions, so it is important to keep a record of all the major decisions you make on behalf of the donor. Make a note of the date of and the reason for the decision, including those you may have consulted in reaching it and any disagreements. You do not need to include minor, everyday decisions. If you are a Property and Affairs attorney, you will need to keep a record of the donor’s income and their assets, as well as how you spend their money.

Should you need to find out more about being appointed as an attorney for someone under a Lasting Power of Attorney, be sure to contact our friendly and helpful LPA solicitors today on 01483 451 900 or make an online enquiry and we will call you back.