You have agreed to be an attorney of a property LPA made by the donor. What is your role?
- When do I need to act?
Once the LPA has been registered with the Office of the Public Guardian, and provided it is unrestricted and unrevoked, you will be able to act for the donor for the rest of his or her life, either because he or she asks you to or because he or she has lost the capacity to deal with his or her property and affairs in whole or in part.
If the LPA has not been registered with the Office of the Public Guardian, you will have no legal powers to act for the donor. The donor can register the LPA while he or she is mentally capable or you can apply to register the LPA at any time.
There is no power to make any decision for the donor under the LPA during the registration process. If the LPA has been registered but not used for some time, you should tell the Office of the Public Guardian when you begin to act under it, so that you can be sent relevant, up to date information about the working of LPAs.
- What actions can I take as an attorney?
You will be able to do anything the donor could have done in relation to their finance and property, provided there are no restrictions in the LPA. This might include:
- Buying or selling property
- Opening, closing or operating any bank, building society or other account.
- Giving access to the donor's financial information.
- Claiming, receiving and using (on the donor's behalf) all benefits, pensions, allowances and rebates (unless the Department for Work and Pensions has already appointed someone and everyone is happy for this to continue).
- Receiving any income, inheritance or other entitlement on behalf of the donor.
- Dealing with the donor's tax affairs.
- Paying the donor's mortgage, rent and household expenses.
- Insuring, maintaining and repairing the donor's property.
- Investing the donor's savings.
- Making limited gifts on the donor's behalf.
- Paying for private medical care and residential care or nursing home fees.
- Applying for any entitlement to funding for NHS care, social care or adaptations.
- Using the donor's money to buy a vehicle or any equipment or other help they need.
- Repaying interest and capital on any loan taken out by the donor.
- When acting in my role as an attorney, what do I need to consider?
In this role you have important duties and responsibilities, which are set out in the Mental Capacity Act 2005 and explained in the Code of Practice, with which you should be familiar. This can be accessed from the website of the Ministry of Justice.
The following are particularly important:
You must follow the principles set out in section 1 of the MCA 2005
It should be assumed that everyone has capacity to make his or her own decisions, unless it is proved otherwise.
A person should have all the help and support possible to make and communicate their own decision before anyone concludes that they lack capacity to make their own decision.
A person should not be treated as lacking capacity just because they make an unwise decision.
Actions or decisions carried out on behalf of someone who lacks capacity must be in that person’s own best interests.
Actions or decisions carried out on behalf of someone who lacks capacity should limit that person’s rights and freedom of action as little as possible.
You must always act in the donor's best interests
There is guidance in chapter 5 of the Code of Practice to help you, but in general terms, you need to do the following.
Consider the donor's past and present wishes and feelings, beliefs and values.
Where practical and appropriate consult with:
- Anyone caring for the donor.
- Close relatives and anyone else with an interest in their welfare.
- Other attorneys appointed by the donor
Always check whether the donor has the capacity to make a particular decision himself. You can act if the donor does have capacity if they have asked you to act and there are no restrictions in the document.
Only make those decisions the LPA gives you authority to make i.e.:
- If you are acting only under a property and affairs LPA, you cannot make decisions about the donor's personal care.
- If the LPA is restricted in any way your authority is limited. If you need further powers in the future, you will be able to apply to the Court of Protection.
Other duties include:
- Apply certain standards of care and skill (duty of care) when making decisions.
- Carry out the donor's instructions.
- Do not take advantage of your position and do not benefit yourself, but benefit the donor (fiduciary duty).
- Do not delegate decisions, unless authorised to do so.
- Act in good faith.
- Respect confidentiality.
- Comply with the directions of the Court of Protection.
- Do not give up your role as attorney without telling the donor and the court.
- Keep accounts.
- Keep the donor's money and property separate from your own.
- How do I decide whether or not the donor has capacity?
You use the test laid down in the Mental Capacity Act 2005, which has two stages:
Stage 1 - Does the person have an impairment of, or a disturbance in the functioning of, their mind or brain? Examples may include conditions associated with some form of dementia, or the long - term effects of brain damage.
Stage 2 - Does the impairment or disturbance mean that the person is unable to make a specific decision? This stage can only be applied if you have taken all practical steps to support the donor in making the decision and this has failed.
A person is considered to be unable to make a decision if they cannot on a balance of probabilities:
- Understand information about the decision to be made (the MCA 2005 calls this 'relevant information').
- Retain that information in their mind.
- Weigh that information as part of the decision making process.
- Communicate their decision (by talking, by using sign language or by any other means).
The Code of Practice offers practical examples which will be very helpful to you, but essentially you need to give the donor as much opportunity to make his or her own decisions as possible before you decide to act and also, to follow in chapter 4 of the Code of Practice, suggests steps for establishing that the donor lacks capacity to make a particular decision.
- What power do I have to make gifts?
You have very limited powers to make gifts from the donor's property.
You can only make gifts to people who are related to, or connected with, the donor (including attorneys) on specific occasions:
- Births or birthdays.
- Weddings or wedding anniversaries.
- Civil partnership ceremonies or anniversaries.
- Other occasions when family, friends or associates usually give presents.
- Gifts can continue to be made to charities if the donor was making regular payments, or even from time to time
You must remember that gifts must be reasonable in relation to the donor's own assets.
Other and larger gifts, even if undertaken for appropriate purposes (e.g. to save inheritance tax) will require the prior approval of the court.