Being an Attorney for someone’s Finance and Property affairs is a lot of responsibility. Prior to taking on this responsibility, you should consider whether or not you are able to undertake such a time-intensive task and understand what you are and aren’t able to do as an Attorney.
Consider How You Are Appointed
First, you should find out whether you are the Sole Attorney, Joint Attorney or Replacement Attorney. Joint Attorneys are further categorised as acting either Jointly or Jointly and Severally with other Attorneys; make sure you understand which applies to you.
When you are appointed to act Jointly, all appointed Attorneys must agree on a decision before acting. All decisions are made as a collective, and you cannot make decisions on your own.
When you are appointed to act Jointly and Severally, all appointed Attorneys have the option to work together and the freedom to work separately. Therefore, an individual Attorney can, without consultation, make decisions on the Donor’s behalf. You should, however, still take the Donor’s wishes into consideration and, if asked, you should consider coming to unanimous decisions with the other appointed Attorney’s if possible.
If you are appointed as a replacement Attorney, you are able to act only when the first named Attorney is unable to do so permanently, including but not restricted to having passed away or suffering from mental health issues that will never improve. You are unable to act when the first named Attorney is only unable to act temporarily, such as if they are on holiday or suffering from a temporary loss of capacity.
What Does a Finance and Property LPA Allow You to Do?
A Finance and Property LPA allows you to deal with the following financial affairs on the Donor’s behalf:
- Buying or selling property
- Operating bank accounts
- Paying bills on behalf of the Donor
- Claiming benefits
Requirements to Act as an Attorney
You must meet the following requirements:
- Be over the age of 18
- Have the mental capacity to make decisions on behalf of the Donor
- Not have been declared bankrupt
How the Mental Capacity Act 2005 Applies to You as an Attorney
You are required to act for the benefit of the Donor in all instances, consult the guidance provided by the Donor in the documents and abide by the general law. Additionally, you are required to follow the Mental Capacity Act 2005 and encourage the Donor to make their own decisions as much as possible. You must also comply with the following responsibilities:
- Not to abuse your position as an Attorney
- Not to delegate unless instructed to
- To act in good faith
- To keep the Donor’s affairs confidential
- To comply with directions from the Court of Protection
- Not to disclaim without notifying the Donor, the other Attorneys and the Office of the Public Guardian
- To comply with relevant guidance
- Keep accounts
- Keep the money and property of the Donor separate from your own
Keeping good records is important not only because the Office of the Public Guardian performs random spot checks, but also as they can act as evidence in the event that anyone should try to claim that you were acting inappropriately or improperly.
Attorneys often make the mistake of allowing the mixing of the Donor’s money and property with their own. This can come in the form of the Attorney using their name as a joint account holder on a bank account, or transferring the Donor’s property into their own name. You must keep the Donor’s money and property separate from your own, otherwise the Office of the Public Guardian will likely revoke your powers as an Attorney and your transactions may be subject to investigation for fraud.
Abusing Your Power as an Attorney
The Donor, other Attorneys, family members or other members if the public can all report you to the Office of the Public Guardian. In this event, it is likely that the Office of the Public Guardian will begin an ‘initial investigation’ to see whether the concerns raised against you are valid. By offering proper accounts and receipts that show you have been acting appropriately, you can usually prevent further investigation. If the Office of the Public Guardian is still concerned following the initial investigation, they will begin a full investigation. Until the investigation is over, it is likely that they will suspend or limit your powers as an Attorney. If the Office of the Public Guardian finds sufficient evidence against you, your powers can be revoked, and if your actions are deemed severe enough, you could face criminal charges. Unfortunately, there are numerous Attorneys who have abused their Powers as Attorneys and subsequently received lengthy prison sentences.
Your Donor’s Will
Please be aware that an LPA does not give you the right to see or handle your Donor’s Will, unless specified. If the Donor loses mental capacity, the Will cannot be disclosed without a court order, or in the unfortunate circumstances of the Donor’s passing. If this is the case, the Executors of the Will have the right to see and handle the Donor’s Will.
If You are Unsure How to Act
In any situation where, while performing your duties as an Attorney, you find yourself unsure of how to act or what your responsibilities are, it is crucial to seek legal advice. If you are deemed to be acting inappropriately in your role as an Attorney, even if you are acting in good faith, the Office of the Public Guardian has the power to completely revoke your appointment.
