An LPA is a legal document that enables an individual (known as a Donor) to appoint a trusted person or people (known as Attorneys) to manage their affairs and make decisions on their behalf in the event that they lose mental capacity.
There are two types of LPA:
- A Property and Finance LPA; and
- A Health and Welfare LPA.
If you are asked to be an attorney for someone, it is important that you understand what you are agreeing to. You must also understand the consequences if you breach your duties.
What are the tasks of an Attorney?
As there are two types of LPA, the tasks that will be expected of you will depend on which LPA you have agreed to be an Attorney for.
For example, under a Property and Finance LPA , you may be asked to carry out tasks on behalf of the Donor that include but are not limited to:
- using their bank and savings accounts on their behalf and for their benefit;
- applying for or claiming benefits and a pension on the Donor’s behalf;
- paying their household and care bills, or using their money to buy things they need;
- making gifts on their behalf; or
- dealing with the Donor’s properties, including anything from maintaining them, buying or selling property, paying any mortgage or rent, or collecting rental income where appropriate.
Under a Property and Finance LPA, the Donor does not have to have lost mental capacity for the Attorney to act on their behalf, unless the Donor has expilicty stated otherwise. This allows for Attorneys to step in when required for some tasks the Donor may be unable to do, such as visiting the bank or financial appointments. The Attorney however must in these cases, act to the instructions of the Donor and always in their best interests.
If you are an Attorney for a Health and Welfare LPA, you could be expected to:
- decide where the Donor should live;
- make decisions regarding their day-to-day routine, including what they should eat and wear;
- organise community care assessments and services;
- arrange appointments with medical professionals; or
- consent to or refuse health care on behalf of the Donor.
Health and Welfare LPAs can only be used when the Donor has lost mental capacity and again, the Attorney must always act in the best interests of the Donor.
What are the duties of and Attorney?
- You are to ensure you do not exceed your duties as set out in the LPA. This will include any specific instructions (which are legally binding) or preferences (which are considered more as guidance) the Donor has documented in the LPA.
- You must follow the principles set out under the Mental Capacity Act 2005.
- You must always act with honesty and integrity when dealing with the Donor’s affairs.
- It is very important that you do not mix finances, and all of the Donor’s finances are kept separate from your own. There are, however, exceptions for married couples and partners who have historically shared a joint bank account.
- it is important that you keep a record of all financial decisions made on the Donor’s behalf. This will include recording all significant transactions and keeping receipts for major purchases.
- You should not put yourself in any positions where your personal interests conflict with those of the Donor, or where you would receive any profit or personal benefit from your position as Attorney.
- Unless the Donor agrees otherwise, you must keep their affairs confidential.
Other important information
It is important that before you agree to be named as a Attorney, that you make sure that you understand how decisions between multiple Attorneys can be made. There are three different options:
- Jointly and Severally – all of the Attorneys can get together to make important decisions if they wish but are free to make simple or urgent decisions on their own without the nput of the other Attorneys. It is up to the Attorneys to choose when they act together or alone unless this is specified by the Donor’s instructions. It also means that if one of the Attorneys dies or is no longer able to act, the LPA will still be valid and the remaining Attorneys can continue to act
- Jointly -the Attorneys must agree unanimously on every decision that is made regarding the Donor. If one Attorney dies or becomes unable to act, the LPA will stop working unless replacement Attorneys have been appointed in the LPA.
- A Mixture – Donors can elect that their attorneys are to act Jointly for some decisions, but Jointly and Severally for other decisions.
As an Attorney you will, unless expressly excluded by the Donor, be allowed to make gifts on behalf of the Donor. However, this is limited to making gifts to people close to the Donor on ‘customary occasions’ and gifts to charity. The gifts must be reasonable when taking into account the size of the Donor’s estate and be an amount that the Donor can comfortably afford. For example, if the Donor’s estate is worth £1 million a gift of £1,000 may be considered reasonable, whereas if the Donor’s estate is worth £20,000, this is very likely to be considered an unreasonable gift amount. If you wish to make gifts that go beyond these rules or worry that it may be considered unreasonable, you may need to make an application to the Court of Protection for authorisation to do so.
When it comes to a Property and Finance LPA, unless the Donor has stipulated otherwise, you will have the power to sell the Donor’s property or possessions. However, if the item is to be sold below market value or you wish to buy it for yourself (or someone you are closely connected to), you may again require permission from the Court of Protection as this may be deemed to be either against the best interests of the Donor, or a conflict of interest.
As you can see, being an Attorney is not a straightforward process and should you be found to be abusing your power or breaching your duties, you may be removed as an Attorney, be personally liable for any loss to the Donor, or even found to be negligent. It is therefore very important that you consider the position carefully, only acting when you know you can perform the tasks and duties assigned to you, and seek legal advice when there are possible issues.
If you have been asked to be an Attorney and wish to discuss any potential issues, please contact us at firstname.lastname@example.org or 01622 801 208 and we can help you through any questions you may have.