You have taken on a serious responsibility in agreeing to act as an Attorney under a Lasting Power of Attorney (LPA). We often find that, unfortunately, in the majority of cases, Attorneys do not fully understand their duties and responsibilities, which can lead to problems. Some of the Attorney’s actions can lead to the Attorney being stripped of their Attorneyship and may even result in an Attorney also committing a criminal office.
Here are some of the most important points for you to consider if you are acting as an Attorney under an LPA:
Mental Capacity Act – statutory principles
You should be careful to ensure that your actions and decisions are compliant with the law. You must understand your important duties and responsibilities, which are set out in the Mental Capacity Act 2005.
Instructions within the Lasting Power of Attorney document
You must follow any restrictions or conditions set out in the LPA. You cannot make decisions which have been limited or restricted within the LPA document unless approval is sought from the Court of Protection.
Conflict of interest
You have an obligation to always act in the best interest of the Donor. If there is a conflict of interest between the Donor and yourself, you must not compromise your duty to act in the Donor’s best interest.
Attorney’s own bankruptcy
If you are declared bankrupt, your appointment as an Attorney under the Property & Financial Affairs Lasting Power of Attorney is terminated.
The capacity of the Donor
You are required to support the Donor in making decisions, and you will need to understand how to ascertain capacity in accordance with the principles of law.
Your authority to make gifts is restricted by legal limits, even if the Donor still has capacity and provides you with instructions to make a gift on their behalf. If you wish to make gifts outside of the legal limits, you should make an application to the Court of Protection for approval of gifts prior to taking any action.
Sale of property to the Attorney
If you wish to purchase the Donor’s property, even at the full market rate, you would need to make a Court of Protection application for authority to purchase the Donor’s property.
You must not profit from your position. If you wish to make a loan to yourself of the Donor’s money, you will need to seek authority from the Court of Protection.
If the Donor runs their own business, you can only continue the operation of the Donor’s business if the Donor prepared a valid Business Lasting Power of Attorney.
Health & Welfare LPA
If the Donor does not have a valid Lasting Power of Attorney for Health & Welfare, you cannot make decisions affecting Donor’s personal welfare, decisions regarding their medical treatment and healthcare. You can apply to the Court of Protection to be appointed a Health & Welfare Deputy.
Our experienced team at Lester Aldridge can provide you with advice as to your obligations, duties and the scope of your authority. Our solicitors can also assist you with applications for authority to the Court of Protection.
If you feel that you could benefit from any assistance, then please get in touch with us at online.enquiries@LA-law.com or call on 01202 702612.