Attorneys capabilities under a Lasting Power of Attorney?

Attorneys capabilities under a Lasting Power of Attorney?

Being appointed as someone’s attorney under a Lasting Power of Attorney means you will have the authority to make certain decisions on their behalf. We look at what an attorney can do under these circumstances.

There are two types of LPA. One in respect of property and financial affairs and one in respect of health and welfare.  When someone loses the ability to manage their own affairs, their attorney has the authority to step in and deal with matters for them. This is once they have registered the Lasting Power of Attorney with the Office of the Public Guardian.

Attorney for property and financial affairs

A property and financial affairs attorney is generally responsible for dealing with all of the donor’s financial matters, to include:

  • Managing bank accounts and investments
  • Paying bills, to include tax liabilities
  • Claiming benefits
  • Home repairs and maintenance
  • Renting out property
  • Buying items on behalf of the donor

There are rules in respect of some transactions, such as the giving of gifts. Only gifts of a reasonable value can be given and these should be in accordance with what the donor can afford. It must be taken into account whether they gave similar gifts while they still had mental capacity.

The donor may have included some restrictions in their LPA, for example, in respect of the sale of their property. In any event, it can be advisable to seek consent from the Court of Protection before selling someone’s home on their behalf. You will also need consent if you wish to deal with tax planning for the donor.

An attorney cannot profit from their role. Neither are they allowed to purchase anything from the donor at below market rate, without the authority of the Court of Protection.

A property and financial affairs LPA can be used while the donor still has capacity. In most cases because they need help due to mobility issues.

Attorney for health and welfare

A health and welfare LPA can only be used when the donor has lost the ability to make their own decisions.

Unless the document contains any restrictions to the contrary, the attorney can deal with the following issues:

  • Where the donor will live
  • Who they will see
  • What their day-to-day routine will look like
  • What personal care they will receive
  • What medical treatments they will have
  • Refusal of life-sustaining treatment

You are required to act in the best interests of the donor in making decisions for them. You must consider what they would want if they were able to communicate this themselves.

An attorney should not make assumptions based on the donor’s age, appearance or condition, nor can the donor’s freedom be restricted.

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