What you can and can’t do with a Lasting Power of Attorney
If you’re thinking about creating a Lasting Power of Attorney (LPA) or have been appointed by someone as an Attorney to act on their behalf, you may have questions about what you can and can’t do with an LPA.
What is a Lasting Power of Attorney?
A Lasting Power of Attorney is a legal document which allows you to nominate one or more people (your Attorneys) to make decisions and act on your behalf when you are unable to make your own decisions during your lifetime.
There are two types of Lasting Powers of Attorney - Property and Financial Affairs and Health and Welfare. Each version has its own set of restrictions on what you can and can’t do. You can choose to make one or both LPAs.
It is better to make and register both types of LPA as soon as possible. Either the Donor or their Attorneys can register the LPA. An LPA can only be made while the Donor has mental capacity.
Who can make a Lasting Power of Attorney?
It is relatively straightforward to create and register a Lasting Power of Attorney. Anyone over the age of 18 can enter into an LPA as long as they have mental capacity.
This means that as the Donor, you must have a full understanding of your decisions, what you are signing and what it means.
Who can be an Attorney?
Anyone over the age of 18 can be an Attorney providing they have mental capacity. To be an Attorney on a Property and Financial Affairs LPA, you cannot be bankrupt.
If you are a Property and Financial Affairs Attorney and become bankrupt in the future, you must notify the Office of the Public Guardian (OPG) as you will no longer be able to act as an Attorney.
An Attorney must make decisions in the Donor’s best interests; not their own or anyone else's.
What can a Property and Financial Affairs Attorney do?
When a Donor creates a Property and Financial Affairs LPA, they can leave specific instructions for their Attorneys. However, looking after someone’s property and financial affairs usually includes (unless the LPA specifies otherwise):
- Managing and using their bank or building society accounts
- Claiming and using their benefits, pensions and allowances
- Dealing with their tax
- Paying bills for their household, care and anything else they need
- Buying items the Donor needs, such as specific health equipment, clothes and hairdressing
- Making gifts on their behalf, although there are additional rules to follow – see below
- Managing their investments
- Maintaining or repairing their home
- Buying property
- Selling or renting the Donor’s home (at market value)
Remember, the Attorney’s decisions must be in the best interests of the Donor. Any gifts or purchases must be reasonable and in keeping with the size of the Donor’s assets and their current and future needs.
Making gifts on behalf of the donor
There are strict rules relating to the gifts that a Property and Financial Affairs Attorney can make on behalf of the Donor. The Donor can also choose to restrict gift-giving powers by leaving specific instructions.
If there are no personal restrictions from the Donor, then a Property and Financial Affairs Attorney will have the power to make some gifts. They can donate to charities that the Donor has already, or would have likely given to. They can also give gifts to family members, friends, or acquaintances of the donor, on occasions such as birthdays, the birth of a child, a wedding or civil partnership, an anniversary or on religious holidays and celebrations. An Attorney is not permitted to give gifts outside these occasions.
Managing finances as an Attorney
If the Donor still has mental capacity, it’s a good idea to talk to them about how they look after their finances. You could discuss the gifts they make on special occasions such as birthdays, who they give gifts to, how much they generally give and whether they donate to any charities. You may wish to talk about spending on clothes, trips out and entertainment.
It's also a good idea to discuss where they store their financial information. Who do they bank with, do they receive any pensions or benefits? Where are the deeds to any property they own?
The more you understand how the Donor acts now will help you make better decisions when the time comes for you to manage their money. If they can’t discuss their wishes with you, speak to others who know them well.
The law states that a Property and Financial Affairs Attorney should usually keep the finances of the Donor separate from their own or anyone else’s. There may be instances where this isn’t practical, such as where the Donor and Attorney are husband and wife and have held joint bank accounts for several years.
Most important of all, record your decisions as an Attorney. Make sure you keep accurate financial records of all the decisions you have made on behalf of the Donor. Ensure you keep receipts for all major purchases too.
As a Property and Financial Affairs Attorney, you must look after the finances of the Donor with more care than your own.
What can’t a Property and Financial Affairs Attorney do?
When a Donor creates a Property and Financial Affairs LPA, they can leave specific restrictions on what the Attorney can’t do. These restrictions would be in addition to:
- An Attorney can’t pay themselves a fee for being an Attorney unless specified by the Donor in the LPA. They can however claim for out-of-pocket expenses such as telephone calls and travel, but not for social visits
- Attorneys cannot mix the Donor’s finances with their own. They must keep separate accounts for them (unless this isn’t practical, see ‘Managing finances as an Attorney’ above)
- Attorneys cannot change or update the Donor’s Will
- A Property and Financial Affairs Attorney cannot make health and welfare decisions, a separate LPA is required for that
- Attorneys must not use their position to benefit themselves or make personal gain
- They cannot purchase something from the Donor at below the market rate unless they have authority from the Court of Protection
- If the Donor still has mental capacity, an Attorney cannot override the Donor’s decision
- Once the Donor passes away, the LPA is no longer valid. Control of the Donor’s estate would pass to the Executors detailed in the Donor’s Will
What can a Health and Welfare Attorney do?
A Health and Welfare LPA only comes into effect once the Donor has lost mental capacity. Whilst the Donor has capacity, a Health and Welfare Attorney has no power
Once the Donor loses mental capacity, and providing there are no restrictions defined in the LPA, an Attorney can usually do the following:
- Choose where the Donor lives, and whom they live with
- Decide the Donor’s day-to-day routine, what they will eat and how they will dress
- Make decisions about medical treatments and personal care, including whether to accept or reject treatment that could keep them alive, although the Donor may record in the LPA they wish to leave this decision to the doctors
- Arranging appointments with doctors, dentists, and opticians
It is important to remember that an Attorney must only make decisions in the Donor’s best interests. They should never make decisions for their own, or anyone else’s benefit.
Making health and welfare decisions on behalf of the Donor
As an Attorney, it’s a good idea to make sure you know the Donor as well as you can whilst they still have capacity. This way you can ensure the decisions you make enable the Donor to continue the life they are familiar with. A Health and Welfare Attorney should find out about the Donor’s likes and dislikes, as well as their values and views.
Some suggestions for the Attorneys to discuss with the Donor:
- Where they want to live
- Do they want to follow a particular diet, such as vegetarian or vegan
- Political and moral outlooks
- What should happen with their pets if they can no longer care for them
- What clothes do they like to wear and how do they like to style their hair
- If they have any hobbies, favourite past-times, their preferred TV shows or music
- Any wishes or preferences about their care and treatment
- Decisions about life-sustaining treatment or decisions to refuse treatment
Even if an Attorney knows the Donor well, we’d still suggest talking through these points. The more an Attorney knows the Donor, the better they’ll be able to make decisions if the Donor can’t. If the Donor isn’t able to talk to an Attorney about their wishes and beliefs, the Attorney should talk to others who knew the Donor well when making decisions for them.
It’s important that the Attorneys record all the important decisions they make about the Donor’s health and welfare. Attorneys don’t need to record all the small, everyday matters, but they should detail significant decisions such as choosing a care home, agreeing to or declining medical treatment or making changes to the Donor’s diet for health reasons.
Keeping a written journal is a good idea. The Attorneys should record details of whom they spoke to about the decisions they made and any disputes about a decision.
What can’t a Health and Welfare Attorney do?
The law states that every decision an Attorney makes must be in the Donor's best interest. An Attorney must not make any decisions to benefit anyone other than the Donor.
Before making any decisions, an Attorney should consult the LPA to ensure that the Donor has not made any predetermined instructions. An Attorney must not make assumptions based on the Donor’s age, gender, ethnic background, sexuality, behaviour or health.
An Attorney cannot:
- Do anything that is not allowed by the LPA. The Donor may have made restrictions about what an Attorney can do.
- A Health and Welfare Attorney cannot make decisions about the Donor’s finances unless the Attorney is also a Property and Financial Affairs Attorney too
- Agree to the Donor getting married, divorced, dissolving their civil partnership or having sex
- Make decisions about treatment for a mental disorder if the Donor has been sectioned
- And an Attorney cannot make decisions that discriminate against the Donor based on age, gender, ethnic background or sexuality
A Health and Welfare Attorney does not decide everything for the Donor. The Attorney can only make decisions in areas where the LPA says they can.
Protection from the Office of the Public Guardian
An Attorney has an important role to play, one which comes with a great deal of responsibility. The Office of the Public Guardian (OPG) registers LPAs to make them legally valid. If someone raises concerns about how a Donor’s money or property is misused, the OPG would investigate how the attorneys are carrying out their role.
The OPG may arrange for a Court of Protection visitor to meet with the Attorney and Donor, or the Donor alone. An Attorney must comply with a court visitor and provide them with any possible information.
In serious cases, the OPG will refer serious cases of abuse to the court. If the court decides that someone used fraud or too much pressure to influence the Donor to make an LPA, the Attorney has done something that the LPA doesn’t allow, or an Attorney is not acting in the best interests of the Donor, they could revoke the LPA.
An Attorney may be ordered to pay a Donor back for any losses they have suffered because of them acting inappropriately. If fraud is suspected, then the OPG may refer the case to the police.
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