What does it mean to be appointed as someone’s Attorney?
Emma Longstaff | Associate Solicitor
In the year of 2019 to 2020 917,550 Lasting Powers of Attorney (“LPAs”) were registered with the Office of the Public Guardian (“OPG”), taking the total of Powers of Attorney on their register to over 4.7 million.
So what does it mean for the Attorneys who have been appointed under those LPAs?
As an Attorney, once the Lasting Power of Attorney (“LPA”) is registered with the Office of the Public Guardian (“OPG”) you can:
1. Under a Financial LPA, act at any time, unless it is restricted to when the donor has lost capacity. If no restriction, then:
- While the donor has capacity provided the donor is in agreement; and
- If the donor has lost capacity.
2. Under a Health and Care LPA, you can only act if the donor has lost capacity to make decisions over health and welfare.
Note, the Donor is the person who has appointed you under the LPA.
What can I do as an Attorney under a Financial LPA
Subject to any restrictions included by the donor in the LPA, under this type of LPA, you are be able to do almost anything which the donor could have done for themselves in relation to his or her financial affairs.
However, there are limits to this. You have limited power to make gifts of the donor’s assets. Gifts that are reasonable, having regard to the circumstances and the value of the size of the donor’s estate, can be made by you to persons who are related to or connected with the donor on customary occasions (such as a birthday or marriage) or to any charity to which the donor has made gifts in the past or might be expected to do so if they had capacity. You should seek independent legal advice before making gifts to ensure you do not breach your duties in relation to this.
What can I do under a Health and Care LPA
Subject to any restrictions included by the donor in the LPA, the attorney can make decisions about anything, subject to the exceptions listed below, that relates to the donor’s welfare. This may include, and is not limited to the following:
- Where the donor should live and with whom;
- The donor’s diet and dress;
- Consenting to or refusing medical treatment or examination;
- The type of activities the donor takes part in;
- Accessing personal information about the donor.
Decisions over consenting to or refusing life sustaining treatment can only be made if the donor has specifically authorised this under the LPA.
There are also limits to welfare powers. You cannot exercise certain rights relating to family relationships such as consenting to marriage, civil partnership or sexual relations, or to a decree of divorce or dissolution order. You can also not exercise voting rights for public offices. Finally, you cannot restrain the donor by restricting their liberty of movement or forcing them to do something that they resist by the use of force or threats, unless you reasonably believe it is necessary to protect the donor from harm and the action is proportionate to the likelihood and the seriousness of the harm.
You should inform anyone involved in the donor’s care, of their personal views on care and medical treatment and their general likes and dislikes.
It is very important to note that when making any decision on behalf of the Donor, you must act in their best interests at all times and adhere to the principles of the Mental Capacity Act 2005.
If you would like specific advice in relation to your role and duties as an Attorney then please do contact one of our Wills and Probate Team at Josiah Hincks by clicking here.
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