Duties of an attorney
Details
Lasting powers of attorney (LPAs) provide attorneys with considerable powers in relation to the affairs and welfare of another individual (the donor). It is important for attorneys to ensure that they act prudently, and are always mindful of the best interests of the donor of the power. Those who have appointed an attorney may be vulnerable adults who have lost their mental capacity. As such, responsible conduct in carrying out the role is paramount. Separate powers of attorney can be created for a donor’s property and financial affairs, and their health and welfare.
Property and financial affairs
As appointed attorney for property and financial affairs, the attorney is required to manage the donor’s property and finances. This includes managing their bank and building society accounts, paying bills, managing pensions and allowances, buying or selling their home, and saving and investing on the donor’s behalf. If possible, attorneys should consult with the donor at the time of making the LPA as to their financial priorities, and if they wish to give any gifts or charitable donations. Many LPA documents will incorporate some form of instruction as to the donor of the power’s preferences for how their affairs should be managed.
It is crucial for attorneys to keep written records of income and expenditure made on the donor’s behalf, and to retain any bills incurred. Attorneys must ensure that the donor’s accounts are kept entirely separate and independent of their own. It can be useful for an attorney to obtain certified copies of the LPA document for their interactions with third parties on the donor’s behalf.
An attorney’s role is to help the donor to make their own decisions if possible, but where this is not possible, to always act in their best interests.
Attorneys are not permitted to make some major decisions under an LPA, such as gifting large amounts of money. Approval from the Court of Protection is required under these circumstances.
Health and welfare
As appointed attorney for health and welfare, an individual is responsible for decision-making in relation to the donor’s medical treatment, living arrangements, daily life, and care. It is important for an attorney to consult with the donor at the time of making the LPA as to their wishes, and to consider that they may have expressed preferences in relation to these matters in the past. Things an attorney may wish to ask the donor about can include their preferred residence, leisure activities, diet and social life. An attorney should provide their own contact details and communicate the donor’s preferences to any healthcare providers caring for the donor. An attorney may need to provide these third parties (such as doctors, care homes and care agencies) with certified copies of the LPA document.
As is the case for property and financial affairs, it is important for an attorney to help the donor to reach their own decisions where possible. Attorneys can only make full decisions when the donor lacks mental capacity to do so for themselves. The LPA document may also contain guidance as to the donor’s preferences in relation to their desired lifestyle and medical treatment. In any case, an attorney must always act with honesty and the donor’s best interests at heart. It is vital for attorneys to keep records of why and when they made particular decisions, for accountability and transparency in decision-making on the donor’s behalf.
This article was authored by Peter McDonnell and Barry McDonough.
