Last updated on May 25th, 2022 at 03:25 pm
Ellie Bowater. Private client advisor.
We are often asked: “I’ve been asked to be an attorney – what do I have to do?”.
Here, in answer to that question, our private client advisor, Ellie Bowater, offers some advice.
What is a lasting power of attorney (LPA)?
An LPA is a document made by someone (the donor), giving someone else (the attorney) the power to make decisions on their behalf if they are unable to do so.
There are two types of lasting powers of attorney. Both must be registered with the Office of the Public Guardian for them to be valid. If you are an attorney for a health and welfare power of attorney, the person who gave you that power must have lost mental capacity for you to be able to act and make any decision on their behalf. If you are an attorney for a property and financial affairs power of attorney, you can act on the donor’s behalf whilst they still have mental capacity if they have given you that power within the LPA.
What is an attorney?
An attorney is someone who has been chosen by the donor to make decisions on their behalf should they lose mental capacity or become unable to make those decisions themselves. Anyone over the age of 18 can be an attorney, but they are usually a relative, friend, or professional attorney, such as a solicitor.
What are your responsibilities as an attorney?
As an attorney, acting on behalf of a donor, you must make the relevant decisions yourself and they must always be in the donor’s best interests. You cannot ask someone else to make them for you. You must:
- Follow the instructions within the LPA
- Take note of the donor’s preferences within the LPA
- Allow the donor to make their own decisions as far as is possible and help with making those decisions
- Ensure that any decisions you make are in the donor’s best interests
- Respect the donor’s human and civil rights
You can get the government’s full guidance on being an attorney here.
Should I accept the request to be an attorney?
The decision to accept the position of attorney should not be taken lightly. Your responsibilities may require a certain amount of time and skills. You should think about whether you:
- know the person well enough to make the decisions required
- are confident you can make the relevant decisions – without being pressurised by others
- have the time to devote to the necessary duties – which might include issues such as:
- maintaining a home
- paying bills
- dealing with tax, benefits and investments
- personal care
- dealing with health professionals
- making end of life care provisions
- have the skills to make appropriate financial decisions
- will be able to get on with any other attorneys appointed
Can I ask the donor’s care worker or GP to make a decision relating to their health and care?
No, if you are an attorney in a health and welfare LPA, you must make the necessary decisions yourself. You cannot leave that to someone else, even if they are a doctor or healthcare worker. The government offers useful advice on making decisions on someone else’s behalf here.
Can I give money to anyone?
You can only give money to people, including family and friends, based on what is specified in an LPA. There are strict rules about using the donor’s money to give gifts, which include:
- What constitutes a gift
- When a loan is a gift
- Who you can give gifts to, and when
- What happens if you give a gift beyond your authority as an attorney
You can find the government’s full guidance on giving gifts here. If you want to give a gift that doesn’t fit within your authority given in the LPA, you must apply to the Court of Protection for permission.
Can I stop being an attorney temporarily?
No, you cannot give up your role as an attorney temporarily. If you wish to stop being an attorney within an LPA, you have to give up that role permanently. Of course, this could leave the person who made you an attorney vulnerable, so you should think carefully before doing this.
If you would like further advice or information about lasting powers of attorney or being an attorney, please contact Graysons’ private client experts.
Author: Ellie Bowater, private client advisor.
