Acting as an attorney under a Lasting Power of Attorney

Apr 10, 2023

A Lasting Power of Attorney is a legal document which appoints someone to act as an attorney for an individual in the event that they lose the ability to manage their own affairs. We take a look at what the role entails.

There are two types of Lasting Power of Attorney, or LPA, that can be made:

  • A property and financial affairs LPA; and
  • A health and welfare LPA

Once an LPA has been signed, it should ideally be registered with the Office of the Public Guardian. It cannot be used until it has been registered and the registration process will take several months, so by registering it at once, it will be ready to use, should it ever be needed.

A property and financial affairs LPA can be used even if the donor (the person who signed the LPA) still has capacity. A health and welfare LPA can only be used if the donor loses mental capacity.

The duties of an attorney under an LPA

The Lasting Power of Attorney document will set out the range of powers that you are being given and may exclude some actions.

As an attorney under an LPA, you have a duty to act in the best interests of the donor at all times. You should bear in mind their values and what was important to them when making decisions on their behalf. You should also consider discussing major decisions with those close to them.

While acting as an attorney, you must:

  • Stay within the scope of the LPA
  • Help the donor make decisions themselves if they still have some capacity to do so
  • Keep accurate records of all financial transactions entered into on the donor’s behalf
  • Record major decisions taken on the donor’s behalf, to include any discussions with those close to the donor
  • Adhere to five principles set out in the Mental Capacity Act 2005:
    • Presume that the individual has capacity unless it is shown that they do not
    • Help and support them to make decisions themselves if possible
    • Allow them to make an unwise decision if they wish to, as is their right
    • Act in their best interests
    • Make decisions on their behalf which are least restrictive of their rights and freedoms

What can a property and financial affairs attorney do?

Under a property and financial affairs LPA, an attorney can deal with all of the donor’s finances, unless restricted by the LPA. This could include:

  • Managing their investments
  • Accessing their bank account to pay bills and buy items for them
  • Maintaining and insuring property
  • Receiving benefits
  • Selling the donor’s property, should this become necessary
  • Making some small cash gifts on the donor’s behalf

What decisions can a health and welfare attorney make?

A health and welfare attorney can make decisions in respect of matters such as:

  • Where the donor will live
  • What care they will receive
  • What their day-to-day routine will look like
  • Who they will see
  • What medical treatment they will receive
  • Whether medical treatment should be stopped

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