Responsibilities of a Lasting Power of Attorney

Tags – Lasting Power of Attorney Responsibilities

If you’ve been appointed as a power of attorney, you have a huge number of important responsibilities.

And this could mean making some difficult decisions about that person’s finances, health or welfare.

Sometimes, you may have to make these decisions on your own, or with other appointed attorneys.

So, you need to think carefully about if you are willing and able to make those decisions when the time comes.

Becoming an Attorney

When someone makes a Lasting Power of Attorney, referred to as the donor, they will appoint an individual to make decisions on their behalf.

Specifically, these decisions cover matters ranging from healthcare to the management of their property and finances, when the donor is no longer mentally capable.

Usually, the donor will decide who their attorney is, and this can be either a friend, family member or a professional.

Although the attorney will act when the donor loses mental capacity, the donor must have full capacity when executing the Lasting Power of Attorney; they must understand what they are signing and what it means.

Then, this can only be used once the Lasting Power of Attorney has been registered with the Office of the Public Guardian.

And, there are two types of Lasting Power of Attorney; Property & Financial affairs and Health & Welfare.

So, this includes making difficult decisions about issues like healthcare; e.g. if the donor is moved into a care home, or finances; e.g. claiming benefits.

In some cases, you may reclaim reasonable expenses, however unless you are a professional attorney, this role is unpaid.

Legal Responsibilities

Your legal responsibilities as an attorney include:

Acting in the donor’s best interests and taking care when making decisions on their behalf
Acting in accordance with the terms set out in the Lasting Power of Attorney documents
Where possible, helping the donor to make their own decisions instead of just simply taking control

For more detailed information, you can check out the Mental Capacity Act Code of Practice here, and you should keep a copy of this for your own guidance.

The reason being, is as part of the process when making the Lasting Power of Attorney, you must sign a statement that confirms you understand your legal responsibilities.

Plus, you can be ordered to compensate the donor for any losses they suffer, if you do not carry out your duties properly; in severe cases if the donor is mistreated, you could also face criminal charges.

Property & Financial Affairs Duties

As long as there are no restrictions laid out in the Lasting Power of Attorney, you are able to do the following:

Buy and sell property
Maintain and repair the donor’s home
Rent out property
Manage bank accounts
Manage and handle investments
Pay bills
Claim benefits
Liaise with HMRC
Purchase items the donor needs
Make gifts; but there are strict rules around this

On the other hand, this is what you can’t do:

Make large financial gifts
Manage discretionary funds without a fund manager
Pay yourself a fee – unless authorised
Mix your personal finances with the donor’s
Tax planning without the Court of Protection’s authority.

Health & Welfare Duties

It’s worth noting here, that you can only make decisions about a donor’s health and welfare once they have lost mental capacity.

Then, as long as there are no restrictions laid you, you can do the following:

Decide where the donor lives
Make decisions about medical treatments and personal care
Decide on their day-to-day routine
Refuse or give authority to life sustaining treatment
Make decisions in the donor’s best interests

In terms of what you can’t do, this is:

Make decisions that restrict the donor’s freedom
Make decisions when the donor still has mental capacity
Make assumptions based on age, condition, behaviour or appearance

End of an Attorney’s Duties

If the power of attorney resigns, the duties are gone too.

Usually, this happens when the Lasting Power of Attorney ends if the donor passes away, or if they revoke the document, or if the transaction for which the donor created the document is completed.

Typically, there will be specific terms laid out in the written agreement that specifies a method for the attorney to resign.

Remember, a power of attorney is a life-planning tool, so this person must be selected carefully as they will have full control over important areas of your life, if you are unable to make decisions yourself.

To find out more, please contact us today.

In the meantime, take a look at our Court of Protection Solicitors.