The Role of Attorneys
There are two types of Lasting Power of Attorney (LPA) – Property and Financial Affairs LPA and Health and Welfare LPA.
A Property and Financial Affairs LPA can be used by Attorneys to make a range of financial decisions, including:
- The buying and selling of property
- Operating a bank account
- Dealing with tax affairs
- Claiming benefits
A Health and Welfare LPA can be used by Attorneys to make a range of decisions, including:
- Where the person who made the LPA (the Donor) should live
- Day-to-day care (including diet and dress)
- Whether to give or refuse consent to medical treatment
Attorneys can only make a decision under a Health and Welfare LPA if the Donor does not have the mental capacity to make that particular decision for him or herself. A Donor may have the mental capacity to make some decisions for him or herself, but not others. Attorneys must work together with the Donor and involve the Donor as fully as possible in every decision.
Attorneys are always required to act in the best interests of the Donor and must have regard to the Code of Practice (section 42(4) of the Mental Capacity Act 2005). Attorneys also have the following duties:
- Of care
- To carry out the Donor’s instructions
- Not to take advantage of their position
- Not to delegate unless authorised to do so
- Of good faith
- Of confidentiality
- To comply with the directions of the Court of Protection
- Not to disclaim without notifying the Donor, any other Attorneys and the Public Guardian
- To comply with the relevant guidance
Attorneys appointed by a Property and Financial Affairs LPA also have a duty to keep accounts and to keep the Donor’s money and property separate from their own.
Attorneys can only make gifts on behalf of the Donor if the recipient is an individual connected to the Donor (this can include an Attorney) or a charity to which the Donor may be expected to make gifts. The value of the gift must be reasonable taking into account the size of the Donor’s estate and other relevant circumstances.
If you would like more information about Lasting Powers of Attorney please do not hesitate to contact our Wills, Trusts & Estate Administration Team on 0118 975 6622.