We often get asked about the role of an attorney appointed under a Lasting Power of Attorney (“LPA”). This guidance note explains the duties of the attorneys appointed both in relation to health and welfare and property and financial affairs.
There are two types of Lasting Power of Attorney (LPA):
- An LPA in relation to the donor’s property and financial affairs.
- An LPA in relation to the donor’s health and welfare.
(Note: the person giving the power is known as the donor)
When can you start to act?
You can only act when the LPA has been registered with the Office of the Public Guardian (OPG). Thereafter, if you are a health and welfare attorney, you can only act if / when the donor loses capacity. If you are a property and financial affairs attorney, you can act before or after donor lacks capacity (unless the donor has specified otherwise).
How do you assess mental capacity?
Adults should be assumed to have capacity to make a decision unless it is established that they do not. You do not have to be an expert in assessing mental capacity, but must have a reasonable belief that the donor lacks capacity before you act on their behalf. You don’t usually need to involve a professional to make an assessment, although they may be required in certain circumstances such as when it is specified in the LPA, when someone is challenging the decision on capacity or where the decision has serious consequences.
Capacity must be assessed in terms of the donor’s ability to make a particular decision at the time it needs to be made. A donor may have capacity to make a decision one day, but not on another day, in which case their capacity should be reassessed.
When assessing the donor’s capacity, you should consider whether:
- They have a general understanding of the decision and consequences.
- They can weigh up all relevant information and use it to make the decision.
- There is any way you could help them make the decision themselves.
It is good practice to record the decisions you make about a donor’s mental capacity.
Can you access the donor’s personal information?
You may require access to the donor’s personal information (e.g. bank details, medical records) to help you make a decision in their best interests. So long as the information applies to decisions you have a legal right to make, you can ask for this information in the same way the donor could have done if they had capacity.
Do you need to consult the donor?
If the donor still has capacity to make a decision, you should not make that decision at all unless you are acting (and the donor knows you are acting) under a property and financial affairs LPA that authorises you to act while the donor has capacity. Otherwise, you must have a reasonable belief that the donor lacks capacity before acting on their behalf and must take all possible steps to help them make the decision themselves.
You should consider:
- Does the donor have all the necessary information to make the decision, including information on any alternatives and foreseeable consequences?
- Can the information be communicated in a way that is easier for the donor to understand (e.g. using simpler language or pictures)?
- Are there any times of day when the donor’s understanding is better (e.g. they may be more alert in the mornings)?
- Is there a particular place where the donor feels more at ease to make a decision (e.g. in their own home rather than a doctor’s surgery)?
- Can anyone else help the donor express a view (e.g. family member or interpreter)?
- Can the decision be postponed to see whether the donor can make the decision at a later time when circumstances might be right for them?
What if more than one attorney has been appointed?
Attorneys can be appointed to act jointly or jointly and severally or jointly in some matters and jointly and severally in other matters. Attorneys appointed jointly must all agree and always act together. Joint and several attorneys can act together but may also act independently.
What if you disagree with another attorney’s decision?
If you disagree with another attorney’s decision or believe they are acting outside of their powers or not in the donor’s best interests, you should initially raise your concerns with them. If that does not resolve the situation, you should raise your concerns with the OPG and be able to support your claim with evidence.
Can you be remunerated?
You are entitled to be reimbursed for out-of-pocket expenses incurred in carrying out your duties, but not to remuneration unless the LPA authorises it.
What are your duties?
You must act in accordance with the statutory principles of the Mental Capacity Act 2005, which (broadly) are:
- A person must be assumed to have capacity unless it is established that they do not.
- A person must not be treated as unable to make a decision unless all practicable steps to help them to do so have been taken without success.
- A person must not be treated as unable to make a decision merely because they make an unwise decision.
- An act done or decision made for or on behalf of a person who lacks capacity must be in their best interests.
- Before the act is done, or the decision made, regard must be had to whether the purpose for which it is needed can be as effectively achieved in a way that is less restrictive of the person’s rights and freedom of action.
You must act in the donor’s best interests at all times. This is a non-exhaustive checklist of factors to be taken in to account when deciding best interests:
- Identify all relevant circumstances, including the things that the donor would take in to account if they were making the decision for themselves.
- Permit and encourage the donor’s participation in the decision.
- Consider whether mental capacity is likely to be regained in the future and potentially postponing the decision if it is not urgent.
- Consider the donor’s past and present wishes and feelings, beliefs and values.
- Consider the views of people who are close to the donor (e.g. family members, friends, carers).
- Avoid discrimination and do not make assumptions about the donor’s best interests simply on the basis of their age, appearance, condition or behaviour.
What is in a person’s best interests may change over time and should be regularly reviewed. In the case of a health and welfare LPA, if the decision is about the provision or withdrawal of life-sustaining treatment, you must not be motivated by a desire to end a person’s life for whatever reason, even if this is from a sense of compassion. It is advisable for you to keep records of discussions so you can show you have taken all views into account and come to your own decision about what is in the donor’s best interests.
These are additional duties to consider:
- Duty of care – you must apply the same care, skill and diligence you would use to make decisions about your own life.
- No-conflict – you must not place yourself in a position where your own personal interests conflict with the donor’s.
- No-profit – you must not get any unauthorised profit or personal benefit from your position.
- Duty of confidentiality – you must keep the donor’s affairs confidential, unless the donor agreed, before they lost capacity, that certain information could be disclosed, e.g. to an accountant. In limited circumstances you may be able to release information if there is a good reason, e.g. if it is in the donor’s best interests or there is a risk of harm to the donor or others.
- Duty not to delegate – unless the LPA specifically authorises it, you cannot delegate your authority. You may, however, take professional advice (e.g. investment advice from a financial adviser).
- Duty to keep accounts – you must keep details of transactions carried out on the donor’s behalf. If the donor’s affairs are straightforward, bank statements may be sufficient, but otherwise detailed accounts will be required.
- Duty to keep donor’s assets separate – you must keep the donor’s property and money separate from your own. In exceptional circumstances, such as when a person is acting as attorney for their spouse and they have customarily kept their assets in a joint account, it may be possible to continue this arrangement.
What if a third party disagrees with your decisions?
If someone disagrees with your decisions or believes you are not performing your duties properly, they can advise the OPG who will investigate and decide if any action is required.
What happens when the donor dies?
When the donor dies, the LPA automatically comes to an end. You should send the original LPA and death certificate to the OPG (or to the solicitor handling the estate).
Can you stop being an attorney?
You can stop acting at any time. You should inform the donor, any other attorneys and the OPG that you are disclaiming your appointment.