What powers do Attorneys have under an LPA?

Understanding Lasting Powers of Attorney in the UK 

When it comes to planning for your future, having a Lasting Power of Attorney (LPA) is like having a safety net. An LPA grants wide powers to someone else to make decisions on your behalf. It is therefore essential to understand the scope and responsibilities of an attorney under a registered LPA before embarking on this role.

So, what is an LPA?

An LPA is a legal document that allows an individual (donor) to appoint one or more people (attorneys) to make decisions on their behalf if they lose the capacity to do so themselves.

There are two types of LPAs in the UK. A Health and Welfare LPA covers decisions about the donor’s personal health and welfare, including medical treatment, daily care routines, and living arrangements. It can only be used when the donor lacks mental capacity. A Property and Financial Affairs LPA allows the attorney to manage the donor’s financial matters, such as paying bills, managing bank accounts, and selling property. It can be used as soon as it is registered, with the donor’s permission.

Why do I need an LPA?

Without a registered LPA, if you lose mental capacity, the court may appoint someone (a deputy) to make decisions on your behalf. This person might not be who you would have otherwise chosen, and they may not know your preferences or wishes. This alternative process is much more time consuming and expensive. It also relies on the friends and family to seek urgent advice when the donor is likely to be most in need and when decisions are time sensitive.

What Should an Attorney Do?

Attorneys must act in the best interests of the donor. Here are some key responsibilities for attorneys: 

• Follow Instructions and Preferences: Attorneys must adhere to any instructions and consider any preferences the donor included in the LPA. 
• Financial Management: Under a Property and Financial Affairs LPA, attorneys manage bank accounts, pay bills, collect benefits or pensions, and may sell property if necessary. 
• Health and Welfare Decisions: Under a Health and Welfare LPA, attorneys make decisions about the donor’s daily routine, medical care, and living arrangements. They can also consent to or refuse medical treatment on the donor’s behalf. 
• Gifting: Property and Financial Affairs Attorneys can make gifts on behalf of the donor under specific circumstances, such as on customary occasions like birthdays or weddings.  The value of the gift must be reasonable in relation to the donor’s estate. 
• Record Keeping: Attorneys must make decisions with care and diligence, always prioritising the donor’s needs and preferences. Keeping accurate records of their decisions and actions ensures transparency and accountability. 
• Act in the Donor’s Best Interests: Regardless of the decision being made, attorneys have an overriding duty to always act in the best interests of the donor. 

What Can’t They Do?

There are clear limitations on what attorneys can do under an LPA, which includes ensuring that the donor’s money being kept separate from the attorney’s own funds: 

• Make decisions before the LPA is registered: An attorney cannot act until the LPA is registered with the Office of the Public Guardian.
• Changes to the Donor’s Will: Attorneys cannot make or change the donor’s will. 
• Make decisions outside the scope of the LPA: Attorneys cannot make decisions that are not explicitly covered in the LPA. 
• Conflicts of interest: Attorneys must avoid conflicts of interest and must not benefit from their position beyond what is reasonable and necessary to carry out their duties. 
• Borrowing money: Attorneys cannot borrow money from the donor’s estate. 
• Gifting: Attorneys can only make gifts under strict conditions, such as on customary occasions and within reasonable limits. Any other types of gifts would need the prior approval of the court which may be costly and time-consuming.  
• Unless explicitly stated in the Health and Welfare LPA, attorneys cannot make decisions about life-sustaining treatment. 

An LPA is a vital legal tool that ensures your wishes are respected if you lose the capacity to make decisions for yourself. Attorneys have significant responsibilities and must always act in the best interests of the donor, adhering to the instructions and limitations set out in the LPA.

Understanding these roles and limitations helps ensure that the donor’s affairs are managed properly and effectively.

If you are a donor or an attorney and have any questions about the roles of attorneys, please contact our team who would be happy to help you.