A Lasting Power of Attorney (LPA) is a legal document that allows individuals (the donors) to appoint someone they trust (the attorney) to make important decisions on their behalf if they become unable to do so. Acting as an attorney is a significant responsibility, requiring a clear understanding of legal duties, ethical considerations, and boundaries.
Types of LPAs and Their Scope
There are two main types of Lasting Power of Attorney:
- Property and Financial Affairs LPA – Grants the attorney authority over financial decisions, including managing bank accounts, paying bills, and handling property transactions. This type can be used even while the donor has mental capacity if they permit it.
- Health and Welfare LPA – Allows the attorney to make medical and personal welfare decisions, such as choosing care providers and consenting to medical treatments. This type only comes into effect when the donor loses mental capacity.
Each LPA must be registered with the Office of the Public Guardian (OPG) before it can be used.
Key Responsibilities of an Attorney
An attorney’s role is not about imposing their own preferences but acting in the best interests of the donor. Their responsibilities include:
- Following the donor’s wishes: Attorneys must adhere to any instructions or preferences outlined in the LPA.
- Acting in the donor’s best interests: They must weigh all decisions carefully, considering what the donor would have wanted.
- Keeping finances separate: If managing financial affairs, attorneys must keep their own finances separate from the donor’s.
- Maintaining accurate records: Financial attorneys should keep clear records of all transactions and be prepared to explain decisions if required.
- Consulting where possible: Attorneys should involve the donor in decisions whenever feasible and seek professional advice when needed.
Legal Boundaries and Limitations
While attorneys have authority, they must operate within strict legal boundaries:
- No personal benefit: Attorneys cannot use the donor’s money for personal gain. Misuse of funds can lead to legal consequences.
- Restrictions on gifts: Attorneys can only make gifts under specific conditions, such as customary birthday or Christmas gifts, and must ensure they are reasonable.
- No overriding the donor’s rights: If the donor still has mental capacity, attorneys must not make decisions on their behalf unless permitted under a Property and Financial Affairs LPA.
- Court of Protection oversight: If there are concerns about an attorney’s conduct, the Court of Protection can intervene and even remove the attorney.
Steps to Becoming an Attorney Under LPA
If you have been asked to be an attorney, consider the following steps:
- Understand the commitment – Ensure you fully understand the donor’s wishes and the extent of your legal responsibilities.
- Register the LPA – The LPA must be registered with the OPG before it is legally valid.
- Act ethically and legally – Always act in the donor’s best interests, seek professional advice when necessary, and comply with legal requirements.
Why Setting Up an LPA Matters
Many people assume their family can automatically step in to make decisions if they become unable to manage their affairs. However, without a Lasting Power of Attorney, relatives may need to go through a lengthy and costly court process to obtain decision-making authority. Setting up an LPA in advance ensures that trusted individuals can manage important matters without unnecessary delays.
Acting as an attorney under an LPA is a role of trust and responsibility. Understanding the legal framework, acting in the donor’s best interests, and adhering to ethical standards are critical. If you or a loved one need to set up an LPA, seek professional guidance to ensure it is done correctly.
#LPA #LastingPowerOfAttorney #UKLaw #ElderCare #LegalPlanning #EstatePlanning #PowerOfAttorney