As an individual grows older and/or has concerns about losing the ability to manage their own affairs, either due to physical incapacity or mental incapacity, it is possible for that individual to appoint another person to make certain decisions on their behalf. The document which transfers the ability to make those decisions on behalf of the individual is called a Lasting Power of Attorney (LPA).  The individual who makes the LPA is the donor.  The person who acts for the individual is an attorney.

If you have been appointed as an attorney under an LPA to act for a parent or elderly relative, although you do not need to be a qualified lawyer, nor even have any legal experience, you will still need to understand the nature and extent of your statutory duties toward the donor.

What is the role of an attorney?

An LPA provides an attorney with the legal authority to act on behalf of the donor in the event that the donor wants help or in the event the donor can no longer make those decisions for themselves. For example, where the donor is in hospital, or otherwise incapacitated, or their ability to make their own decisions has been diminished by reason of illness, accident, or disability.

The types of decisions you will make as an attorney will depend upon the nature of the LPA in place.  There are two kinds of LPAs:-

  1. LPA for property and financial affairs, which allows the attorneys to act on all financial matters
  2. LPA for health and welfare, which allows the attorneys to act on health and welfare decisions

The LPA for property and financial affairs allows the attorney(s) the right to make any decisions regarding the donor’s finances from collecting their pension to renting or selling their home.  It can be used either whilst the donor still has mental capacity, or in the event that the donor no longer has mental capacity.

In contrast, the LPA for health and welfare will only come into effect once the donor is unable to make their own decisions and can include anything from deciding on the donor’s daily routine to receiving life-sustaining medical treatment.

If the donor appoints more than one attorney, the donor will need to determine whether or not the power to act by the attorneys needs to be made jointly, or jointly and severally.  Jointly means any attorneys must act together on all decisions.  Jointly and severally mean that each attorney can act independently, or all attorneys can act together on all decisions. If the attorneys are appointed jointly, and one attorney can no longer act (due to death or incapacity etc) the neither attorney can act on behalf of the donor.

How should an attorney act?

LPAs provide attorneys with the power to make important and often life-changing decisions about the donor’s future. As such, the attorney is duty bound to act in the best interest of the donor at all times.

However, even with the best intentions, it is all too easy for an attorney to inadvertently fall foul of the law, not least in failing to act within the scope of their authority and/or overlooking the express wishes of the donor. Accordingly,  the following tips should be adhered to:

  • Always carefully read the LPA to ascertain the extent of any decision-making power, including whether certain decisions should be made ‘jointly’ or ‘jointly and severally’.
  • Always follow any specific instructions or guidance provided by the donor in relation to certain decisions and, wherever possible, take into account any preferences the donor has included within the LPA.
  • Always help the donor in making their own decisions, allowing them plenty of time or explaining things in a different way, and do not delegate any decision-making to any unauthorised person.
  • When making a decision on the donor’s behalf, always have regard to what that individual would have decided if they could, including their past and present values and wishes, as well as any moral, political and religious views you are aware of. You may want to consult with other relatives, friends or carers before reaching any important decisions.
  • Where a joint decision with other attorneys cannot be reached, you should seek independent advice from either the Office of the Public Guardian or a specialised advocate, or even consider mediation. In the event that a disagreement in relation to a serious issue cannot be resolved, you may need to make an application to the Court of Protection.

What if an attorney gets it wrong?

In the event that you fail, as an attorney, to act in the best interests of the donor at all times, you may find yourself the subject of a complaint to the Office of the Public Guardian (OPG). The OPG is the government body responsible for monitoring the use of LPAs and attorneys’ actions. Moreover, the OPG can also report concerns to other agencies, where appropriate, including the police or social services.

In circumstances where an attorney is found to have acted in their own interests, or otherwise contrary to the best interests of the donor, the Court of Protection can also be asked to intervene to remove the attorney or revoke the LPA.

Legal disclaimer

The matters contained herein are intended to be for general information purposes only. This blog does not constitute legal advice, nor is it a complete or authoritative statement of the law and should not be treated as such.

Whilst every effort is made to ensure that the information is correct, no warranty, express or implied, is given as to its accuracy and no liability is accepted for any error or omission. Before acting on any of the information contained herein, expert legal advice should be sought.