On the 3 March 2017, the Office of the Public Guardian (the OPG) published a useful practice notice for fee paid professionals who agree to be appointed as a lasting power of attorney (LPA) in their professional or business capacity. This excludes family members or friends, however includes solicitors, accountants, financial advisers, consultants and people working in charities.
The guidance applies to both types of LPA – Finance and Property and Health and Welfare. Its aim is to ensure that you are adequately prepared for the role and that appropriate discussions are had with the donor before the loss of capacity.
Below I set out a summary of three relevant sections under the guidance for prospective attorneys:
- Points to consider when preparing to become an attorney:
a) The difference between an individual LPA or trust corporation
The donor must be informed that if an individual is chosen, then the person is personally responsible and that the appointment continues even if your leave your post, profession or retire, unless or until you disclaim your appointment.
b) Conflict of interest
If you provide the donor with general advice on creating an LPA, and put yourself forward for the position, the donor must reach their decision free of any influence in order to avoid any conflict of interest.
c) Skills and experience
The donor must be fully informed of your competence for the role including any relevant skills, experience and knowledge of mental capacity you have.
d) Appointments made jointly or jointly and severally
To be appointed jointly and severally, in particular with a lay attorney, means you could be held responsible for any misappropriation by them. Further it is necessary to agree in advance on the working relationship to ensure effective management of the donor’s affairs.
e) Certificate providers
This has to be an impartial third party who confirms that the donor fully understands what they are doing and has not been coerced. The certificate provider cannot be:
- Any business party, employee or family member of the attorney.
- Any director or employee of the trust corporation, or connected business
- Duties and Responsibility
In accordance with paragraph 7.59 of the Mental Capacity Act Code of Practice, the Office of the Public Guardian demands the following from a fee paid professional attorney:
- a higher degree of care or skill than those acting in an unpaid or lay capacity, in particular in relation to those particular skills or qualifications they pertain to have;
- that they display professional competence and follow their profession’s rules and standards as set out in paragraph 7.59 of the Mental Capacity Act Code of Practice and;
- only take on as much work as you can handle (i.e. ensuring you can cope in the event that every donor needed your help at the same time)
It is important to remember that any failure to act appropriately can result in severe consequences, both personally for the attorney and their organisation, including professional negligence claims, regulatory investigation, financial loss and criminal liability.
- Professional Fees:
You cannot charge for your services if the LPA document is silent on fees.
You should discuss and agree with the donor your fees, how these are likely to increase over time and how long you expect to be charging fees once the LPA becomes active.
Most importantly, you should discuss with the donor what you will do should your professional fees become unaffordable. You may need to consider disclaiming your appointment or whether you would be prepared to act free of charge.
All prospective attorneys should review the full guidance which is available here.