A Lasting Power of Attorney (LPA) is a legal document that allows one person (the donor) to appoint another (the attorney) to make decisions on their behalf should they become unable to make decisions for themselves due to illness, injury, or incapacity.

The attorney’s role is crucial as the LPA grants them authority over matters such as personal care, property, finances and health care and a significant responsibility is placed on them to act in the donor’s best interest at all times.

This guide outlines the duties and responsibilities that an attorney must adhere to under an LPA, ensuring the donor’s rights and wishes are respected.

Acting in the best interests of the Donor

The primary duty of an attorney under an LPA is to always act in the best interests of the donor. Fortunately, the Mental Capacity Act 2005 and the Code of Practice offers an attorney useful guidance when determining what is in the best interests of another person. This includes making decisions that reflect the donor’s preferences, beliefs, and values as much as possible. An attorney is required to take reasonable steps to understand the donor’s wishes, which may involve consulting with close family members, friends, or professional advisers. Where the donor has previously expressed their wishes (either verbally or in writing), an attorney must follow these instructions unless there is a compelling reason not to do so. The attorney must also ensure that the donor’s rights and freedoms are respected and should not make decisions that would restrict the donor’s independence unless strictly necessary.

When can an Attorney start to act?

An LPA cannot be used until it has been registered with the Office of the Public Guardian (OPG). If the donor has specified within the LPA that the attorney can only act when the donor has lost capacity, the onus is placed on an attorney to provide evidence that the donor indeed lacks capacity to deal with their own affairs. This may require an attorney to consult with a doctor who would be able to provide an assessment as to the donor’s mental capacity to make specific decisions.

It is however very common for an LPA to be used by an attorney once registered with the OPG, irrespective of whether the donor has lost capacity or not. Once registered, a financial affairs LPA can be used while the donor still has capacity, unless the document specifies otherwise, provided that the donor consents to this. An attorney under a health and welfare LPA however, can only act when the donor loses capacity.

It is important to note that mental capacity will vary according to the nature of the decision to be taken at that particular time. Whilst a donor may have capacity to make decisions about paying their household bills, at the same point in time, they may not have the requisite mental capacity to sell their home. However, it may be the case that a few months later, the donor is able to make decisions regarding the selling of their home. It is therefore crucial that each decision required to be made is assessed on an individual basis, particularly where the donor’s mental capacity fluctuates. If the attorney has any doubt over the donor’s capacity to make a certain decision, they should consult with a doctor who is able to undertake a mental capacity assessment.

Duty of Care and Skill

An attorney is expected to carry out their duties with a reasonable standard of care and skill. This includes making informed and considered decisions based on available information, as well as seeking expert advice where necessary. For example, an attorney who manages the donor’s finances may need to consult financial advisers, tax experts, or solicitors to ensure the best financial outcomes for the donor. In cases where the attorney is not qualified to handle certain decisions, they should seek assistance from professionals who can offer expert advice.

This duty of care also involves monitoring the donor’s welfare and ensuring that they are receiving appropriate support. If the attorney has responsibility for the donor’s personal care, they should ensure that the donor’s physical, emotional, and social needs are met.

Avoiding Conflicts of Interest

An attorney must always avoid conflicts of interest, meaning they should not use their position to gain personal benefits. For example, an attorney should not make financial decisions that benefit themselves or others at the donor’s expense. If an attorney is in a position where there is a potential conflict of interest, they are legally obligated to disclose this to the donor (if possible) and seek professional advice.

If a conflict arises, the attorney may be required to step down or seek guidance from the court to ensure the donor’s best interests are maintained. This helps to protect the donor from any potential abuse or exploitation.

Access to the donor’s personal information

In carrying out an attorney’s duty, they may require access to the donor’s personal information, for example medical records or bank details, to assist in making decisions in the donor’s best interests. An attorney has the right to ask for this information as long as the information requested applies to the decision that the attorney has a legal right to make.

Decisions made by multiple attorneys

Depending on what the donor has specified within the LPA documents, multiple attorneys can be appointed to act jointly or jointly and severally. It is important to note that attorneys appointed jointly must all agree and must always act together. Attorneys appointed jointly and severally can act together but may also act independently if they wish. It is also possible for a donor to specify within the LPA documents that his or her attorneys must act jointly on some matters and jointly and severally on other matters and therefore it is vital for attorneys to check what is set out in the LPA documents.

If attorneys are in disagreement about certain decisions and they are unable to resolve them between themselves, they should raise the concerns with the court. It is vital to note that the fact that an attorney disagrees with a decision is not in itself grounds to challenge it.

Record Keeping and Accountability

It is advisable for attorneys to keep accurate records of any decisions they make on behalf of the donor. This includes maintaining a record of financial transactions, care decisions, and any other matters the attorney has dealt with. The attorney should keep receipts, statements, and other documents as evidence of the decisions made. There is also a duty on an attorney to keep the donor’s money and property separate from their own.

Good record-keeping ensures transparency and accountability, helping to protect both the donor and the attorney. In some situations, attorneys may be required to submit an account of their actions to the donor’s family members or OPG for review. Failure to maintain proper records can lead to legal consequences for the attorney.

Conclusion

Being appointed as an attorney under a Lasting Power of Attorney comes with significant responsibility and should not be taken lightly. Attorneys are entrusted with making decisions that affect the welfare, finances, and overall well-being of the donor, and they are legally required to carry out their duties with integrity, care, and diligence as well as having a firm commitment to always acting in the donor’s best interests.

If you have any queries with regard to a best interest decision or require a further understanding of attorneys’ duties and responsibilities, please contact our private client team who can provide the necessary support.

For more information contact Nikita Mayani at Nikita.Mayani@haroldbenjamin.com