Power Of Attorney duties and responsibilities when acting under an LPA

Contentious probate solicitor, Cavelle Leigh, takes a look at the world of LPA’s, including who can be a Lasting Power of Attorney, and Power of Attorney abuse.

With an increasingly aging population, Lasting Powers of Attorney (LPAs) are becoming more and more commonplace. So, what are they?

LPAs are legal documents which allow the person to whom they relate, known as the donor, to appoint other people, known as the attorneys, to manage their affairs.

There are two types:

• LPAs for Property and Financial Affairs
• LPAs for Health and Welfare.

The Health and Welfare LPA can only be used if and when the donor loses mental capacity.

The Property and Financial Affairs LPA can be used before or after a donor has lost mental capacity, provided the donor has consented.

However, it should be noted that neither document can be used until it is registered with the Office of the Public Guardian.

Who can be a lasting power of attorney?

The donor can appoint one attorney or several. The only stipulation is that the attorneys must be over 18, and in the case of a Property and Financial Affairs LPA, have not been declared bankrupt.

If the donor appoints more than one attorney, they can either act jointly, jointly or severally, or either way depending on the decision to be made:

• To act jointly means that all attorneys must agree and act together when making a decision.
• To act jointly and severally means the attorneys can either act jointly as above, or they can act independently of each other. This may be useful, for example, if an urgent decision needs to be made and there isn’t time to consult with the other attorneys.

A donor can appoint a professional such as a solicitor to act at their attorney but there will be costs and practical implications of doing so such as their availability being limited to their working hours. For this reason, and due to the sensitive nature of some of decisions, many donors prefer to appoint friends and family as their lasting power of attorneys.

What does being power of attorney involve?

Whilst it may be considered a privilege to help and support a donor in their later years, the decision to become an attorney under an LPA is not one to be taken lightly without careful consideration.

Attorneys acting under an LPA must adhere to various duties, some but not all of which are listed:

• Duty to act within the scope of their authority
  The authority of an attorney is restricted in law and by the limitations specified in the LPA itself.
• Duty to act in accordance with the Mental Capacity Act 2005
  This states that a person is assumed to have mental capacity, unless it is established that they do not. A person should not be deemed unable to make a decision, unless every effort has been made to help them, and furthermore that a person is not necessarily incapable of making a decision simply because they make an unwise one. If a person is unable to make a decision, consideration must be given to what alternative course of actions are available before a decision is made on their behalf.
• Duty to act in the donors best interests
  When determining what is in the donor’s best interests, attorneys should:
  • avoid making assumptions based on the donor’s age, appearance, behaviour or condition
  • consider the donor’s known wishes, feelings, values and beliefs
  • consider the opinions of those close to the donor e.g. friends and family
  • consider whether the decision can be postponed should the donor regain mental capacity
  • encourage the donor to participate in the decision where possible
• Duty not received unauthorised profit from one’s position as attorney
  Attorneys should keep their own finances wholly separate from the donor’s, and keep accurate accounts of all transactions made on the their behalf. It is advisable to make all payments on card or by direct debt rather than using cash, and where it isn’t automatically apparent from the bank statement itself, record what the payment was for and keep receipts.

Power of attorney abuse: what if an attorney is abusing their position?

The majority of attorneys acting under an LPA fulfil their duties and act in the donor’s best interests. Unfortunately, though, there are some that abuse their position of trust either emotionally or financially for their own gain.

Signs of power of attorney abuse:

• Are there irregular or unexplained payments from the donor’s accounts?
• Is the attorney being secretive?
• Is the attorney taking out credit cards or loans in the donor’s name?
• Is the attorney in financial difficulty?
• Has the donor’s behaviour changed? Do they appear anxious, depressed or frightened?

If you would like further information about the role of an attorney or suspect that that power of attorney abuse is taking place, please contact us. Holmes & Hills have a team of experienced solicitors who can assist in situations whereby an attorney’s removal is sought, and potentially look at recovering compensation where financial abuse has taken place.