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If you are named as an Attorney in a Lasting Power of Attorney, then you may be required to make decisions about the affairs of a friend or family member.
This could be because they have asked you to (in the case of financial decisions), or because they now lack capacity to manage their own affairs. Perhaps your friend or relation has special needs, has had an accident or illness, is living with Alzheimer’s or a different kind of Dementia.
The person who appointed you as an Attorney in their Lasting Power of Attorney is called the Donor. As an Attorney, you’ll be authorised in advance by the Donor to make decisions on their behalf, but you need to be mindful of the legal framework in which you are authorised to do so.
There are two types of Lasting Power of Attorney (LPA):
Property and Financial – which allows an Attorney to pay bills or organise investments, for example.
Health and Care – which allows an Attorney to make decisions about medical treatment and how someone is looked after day-to-day.
Your loved one may have one or both LPAs in place.
LPAs must be registered with the Office of the Public Guardian (the ‘OPG’) before you can use them to make decisions on the Donor’s behalf. If the Donor has not already registered their LPAs, then we can deal with this for you, although in most cases the LPAs will have been registered immediately.
The registration process takes about 8 weeks and so early registration is recommended. This ensures there is no delay, should you need to exercise your decision-making powers at short notice.
Who can be an Attorney?
For both types of LPA, Attorneys must be 18 years or over when they are appointed. Other than this, there are no restrictions on who can be an Attorney for Health and Care decisions.
For Property and Financial LPAs, the Attorney must not be bankrupt. If you are bankrupt and have been appointed as an Attorney, you’ll need to tell us straightaway.
Sometimes, a professional such as a solicitor will be appointed as an Attorney, either alone or with others.
When can an Attorney start to act?
An Attorney can only act under an LPA after it has been registered with the OPG.
A Health and Care Attorney can only act when the Donor loses capacity.
A Property and Financial Attorney can act before or after the Donor loses capacity, unless the Donor specifies that the Attorney cannot act until he or she has lost capacity. There could be many reasons why a Donor who still has capacity would want an Attorney to manage some all or all their affairs. For example, they might find it difficult to get about or talk on the telephone, or they might be out of the country for long periods of time.
Assessing mental capacity
If you are a Health and Care Attorney, you may need to assess the Donor’s capacity to make decisions before deciding for them. You must take all possible steps to help the Donor make the decision for themselves.
If you are a Property and Financial Attorney, you may also need to assess the Donor’s capacity to make decisions, if the LPA says that you can only act after the Donor has lost capacity.
As an Attorney, you do not need to be an expert in assessing capacity, but you must have a reasonable belief that the Donor lacks capacity to make a decision before you can act on his or her behalf.
Sometimes, it may be necessary to get professional involvement in determining capacity. For example, in situations where a decision has been challenged on the grounds that the Donor lacked capacity, or where the decision to be made could have serious consequences.
Capacity must be assessed specifically in terms of the Donor’s ability to make a particular decision at the time it needs to be made.
In other words, a Donor may have capacity to decide one day, but not on another day, in which case his or her capacity should be reassessed from time to time. Alternatively, a Donor may have a constant condition and frequent assessment of capacity is not necessary.
A person is not to be treated as unable to make a decision merely because he makes an unwise decision. A Donor’s capacity must also not be judged simply on their age, appearance, condition, or an aspect of their behaviour.
For more information on mental capacity, have a look at our separate help guide on ‘Mental Capacity’, or contact us to discuss further.
Recording decisions
It is good practice for an Attorney to record the decisions that he or she makes about a Donor’s mental capacity. If you are unsure about the Donor’s capacity, you can contact us or the OPG.
Contact details for the Office of the Public Guardian can be found here.
Change of address
After an LPA has been registered, the OPG must be able to contact you and the Donor about the LPA if necessary. Therefore, if you and/or the Donor change address, the OPG must be informed.
Access to the Donor’s personal information
In carrying out your duties as an Attorney, you may need to access the Donor’s personal information, for example, bank details or medical records, in order to help him or her make a decision, of for you to make a decision in the Donor’s best interests.
As long as the information applies to a decision that you, as an Attorney, have the legal right to make, you can ask for this information in the same way the Donor could have done, if he or she had capacity.
Where possible, you should restrict information requests to information that will assist in making the required decision. For example, if you need to know when the Donor should take medication, you should not ask to see the entire health record.
How have you been appointed?
You may have been appointed to act alone, or with other people in relation to the Donor’s affairs.
If appointed with others, you may be appointed ‘jointly’, which means that you’ll need to make decisions unanimously, or ‘jointly and severally’, which means that you can make decisions alone or together.
What are your responsibilities as an Attorney?
Your duties and responsibilities are set out in the Mental Capacity Act 2005, and you can find further information in this Act and in the Lasting Power of Attorney document itself. There is also a Code of Conduct which accompanies the Mental Capacity Act 2005 and provides practical guidance for making decisions on behalf of someone who lacks capacity.
The key points are set out for you here:
- It must be assumed that the Donor can make their own decisions unless it is established that they can’t.
- You must help the Donor to make as many of their own decisions as they can and take any practical steps available to help the Donor make their own decisions.
- You must not treat the Donor as being unable to decide simply because they make an unwise decision.
- You must act and make decisions in the Donor’s best interests when they are unable to decide.
- Before you make a decision on behalf of the Donor, you must consider whether they can make the decision or act in a way that is less restrictive of their rights or freedoms but still achieves the purpose.
Best interests
The overarching principle of the Mental Capacity Act 2005 is that Attorneys must always act in the Donor’s best interest. If decisions are in the best interests of the Donor, an Attorney is protected from liability.
Working out what is in someone’s best interests may be difficult and the Mental Capacity Act 2005 gives a non-exhaustive checklist that must be considered when deciding best interests:
- Identify all relevant circumstances, including all the things that the Donor would consider if he or she was making the decision for him or herself.
- Permit and encourage the Donor’s participation in the decision.
- Consider whether mental capacity is likely to be regained in the future and whether the decision can be put off until later if it is not urgent.
- Consider the Donor’s past and present wishes and feelings, beliefs, and values.
- Consider the views of people who are close to the person who lacks capacity, for example, family members, friends, and carers.
- Avoid discrimination and do not make assumptions about the Donor’s best interests simply based on the Donor’s age, appearance, condition, and behaviour.
If you need more advice or guidance, please do not hesitate to contact us.
The Mental Capacity Code of Practice
The Code of Practice has further guidance for people who work with, or care for, people who lack capacity. Attorneys under an LPA are legally required to have regard to the Code of Practice.
The Code of Practice is available online or you can ask us to send you a copy. The guidance for Attorneys is set out in Chapter 7 and includes references to other chapters of the Code of Practice that may be helpful to you.
What can I do as an Attorney?
If you are acting as an Attorney under a Property and Financial LPA, you may be able to make property and financial decisions on behalf of the Donor as soon as the LPA has been registered (with the Donor’s permission) or only if the Donor has lost capacity to make their own decisions. You will be able to liaise with banks, building societies and other financial institutions in relation to the Donor’s accounts and investments.
You can make deposits and withdrawals on their behalf, pay bills and open or close accounts as required.
You may also be able to make gifts on behalf of the Donor in limited circumstances, although in some cases you’ll need to get permission from the Court (see below).
Guidance has been published by the OPG about making investments for someone who does not have mental capacity and you can view this guidance by following this link: https://www.gov.uk/guidance/investing-for-someone-as-their-attorney-or-deputy
If you are acting under a Health and Care LPA, and the Donor has lost capacity, you will be able to liaise with doctors, social services, local authorities, carers and other professionals involved in the Donor’s care.
You will be able to make decisions on the Donor’s behalf about where they live, how they are cared for as well as daily decisions, such as what they eat and wear. You may also be able to make decisions about ‘life-sustaining treatment’ if the Donor has specified this in their Health and Care LPA.
Although there are many decisions that you’ll be able to make as an Attorney, there are also certain things that you can’t do. We routinely advise Attorneys on complex decision-making.
We also act for Attorneys in the day-to-day management of Donors’ financial affairs, by keeping and maintaining good financial records, arranging for bills to be paid, sorting and advising on paperwork for care homes, liaising with financial advisors and accountants in relation to larger financial decisions or investments, and everything in between.
Duty to keep accounts and records
If you are acting as an Attorney under a Property and Financial LPA, you must keep details of transactions carried out on the Donor’s behalf. If the Donor’s affairs are straightforward, bank statements may be sufficient. If the Donor’s affairs are more complicated, detailed accounts may be required. If you need any help, please ask.
Can an Attorney make gifts of the Donor’s money or property?
Your main duty when acting under a Property and Financial LPA is to provide for the Donor’s needs. Your focus should be on maintaining and providing for the Donor.
The Mental Capacity Act 2005 says that an Attorney has no authority to make gifts except in the following limited circumstances:
- On customary occasions, such as birthdays, anniversary, marriages or civil partnerships, or any other occasion on which presents are usually given within families or among friends or associates.
- These gifts may be made to people who are related to, or connected with, the Donor (and this also includes Attorneys).
- Gifts may also be made to any charity to which the Donor made, or might have been expected to make, gifts.
- The value of each gift should not be unreasonable, having regard to all the circumstances and the size of the Donor’s estate.
Guidance has been published by the OPG about making gifts for someone who does not have mental capacity and you can view this guidance by following this link: https://www.gov.uk/government/publications/giving-gifts-a-guide-for-deputies-and-attorneys
If you are an Attorney acting under a Property and Financial LPA and want to make other gifts, you’ll need to apply to the Court of Protection for authority. We can help you with this application if you need us to.
Can I get paid as an Attorney?
An Attorney is entitled to be reimbursed for out-of-pocket expenses incurred in carrying out his or her duties. Professional Attorneys, such as solicitors or accountants, will charge for their services, although a Donor can also decide to pay a non-professional Attorney if they wish.
The Donor should discuss and record any decisions made about paying Attorneys in the Lasting Power of Attorney itself. If there is nothing noted in the LPA documentation, then a lay Attorney cannot be paid, other than to recover his or her out-of-pocket expenses.
Can an Attorney make a Will for someone who lacks capacity?
Yes, it is possible to make an application to the Court of Protection for what is called a Statutory Will. Please get in touch if you need advice about this.
What happens when someone disagrees with a decision of an Attorney?
It is possible for the actions and decisions of an Attorney to be challenged. This can be done by someone connected with the Donor, or by another Attorney.
If this person disagrees with a decision of the Attorney, or believes the Attorney is acting outside of his or her powers, or not acting in the best interests of the Donor, they should initially raise their concerns with the Attorney in question. If that does not resolve the situation, only then should the Attorney raise his or her concerns with the OPG (see above for contact details).
If a decision is being challenged, the person challenging the decision should be able to support his or her assertions with evidence. Similarly, when asserting that an Attorney is not acting in the Donor’s best interests, this must also be supported with proof. The fact that someone disagrees with the Attorney’s actions or decisions is not in itself grounds to challenge them.
Can I stop being an Attorney?
Yes, you can stop acting as an Attorney at any time. If the LPA is registered, you’ll need to tell us and the OPG.
How Roche Legal can help
Dealing with legal issues can be confusing and stressful. We understand this, and we’re always on hand to untangle jargon and offer support.
If you need advice on any of the issues raised in this help guide, please don’t hesitate to get in touch. Roche Legal is an award-winning legal practice, offering practical and caring advice.