As an Attorney the LPA gives you authority to act. It does not impose a duty on you to do so, however you do owe certain duties of care to the Donor if you do act.
As an Attorney under a Lasting Power of Attorney, what can I do?
Subject to any restrictions or conditions specified in the LPA, you can deal with the Donor's property and finances or health and welfare decisions in exactly the same was as the Donor can him/herself.
For a Property and Affairs LPA this may include:
- Operating the Donor's Bank/Building Society accounts
- Managing investments
- Selling the Donor's property
- Making provision for others (including yourself) if the Donor might be expected to provide for that person's needs
- Claiming, receiving and using the Donor's benefits, pensions and allowances
In regards to a Health and Welfare LPA this may include:
- Making decisions on medical treatment
- Making decisions about where the donor resides
- Day to day matters such as the Donor's dietary requirements
As an Attorney under a Lasting Power of Attorney, what can I not do?
When acting as an Attorney under a LPA there are a number of things that you cannot do, these include:
- Appoint a substitute or delegate your authority
- Act outside the powers given to you in the LPA e.g. if you are only named as an Attorney on an Affairs and Property LPA you cannot consent to any medical treatment on behalf of the Donor
Also you may not, without the consent of the Court of Protection:
- Make a Will for the Donor
- Make gifts for Inheritance Tax planning purposes
As an Attorney under a Lasting Power of Attorney, what are my duties?
- You must manage the Donor's affairs in accordance not only with the terms of the LPA but also with the requirements of the Mental Capacity Act 2005
- You must act in the best interests of the Donor and consider their needs and wishes as far as possible
- You must not take advantage of your position to gain any benefit yourself
- You must keep up to date accounts on behalf of the Donor
- You have a duty of confidentiality at all times unless the Donor consents to you disclosing information about them
What happens if the Donor becomes mentally incapable?
If you believe the Donor is, or is becoming, mentally incapable, you must register the LPA with the Office of the Public Guardian (OPG), if this has not already been done.
An LPA cannot be used until its has been registered with the OPG. Once stamped and returned from the OPG a Property and Affairs LPA becomes valid immediately. However a Health and Welfare LPA can only be used if the Donor lacks the mental capacity to make decisions on their own.
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