What is a lasting power of attorney?
A lasting power of attorney is a legal document that lets an individual (known as the ‘donor’) appoint one or more people (known as ‘attorneys’) to help them make decisions, or for them to make decisions on their behalf.
If you have agreed to act as an attorney for an individual, it is important that you understand the role and what your duties will be.
Types of lasting power of attorney
The types of decisions you can make will depend on whether you’re an attorney for:
- property and financial affairs;
- health and welfare; or
You may have been appointed either alone, jointly (where all attorneys need to sign/make a decision each time together), or jointly and severally (where all or any one attorney can sign/make a decision) with another, or others).
When can a lasting power of attorney be used?
Property and financial affairs lasting power of attorney
Once the lasting power of attorney has been registered with the Office of the Public Guardian, and provided that it is unrestricted, you will be able to act for the donor for the rest of his or her life, as long as the power is not revoked.
You will be able to act for the donor because he or she asks you to, or because he or she has lost the mental capacity to deal with his or her property and financial affairs, in whole or in part.
Health and welfare lasting power of attorney
You will only able to act for the donor if the lasting power of attorney has been registered with the Office of the Public Guardian and only if the donor does not have sufficient mental capacity to make the relevant health or welfare decision himself/herself.
In both cases, under the Mental Capacity Act 2005, whether or not the donor has, or has not got, sufficient mental capacity to make the relevant decision at the relevant time is issue and decision-specific.
If the lasting power of attorney has not been registered with the Office of the Public Guardian, you will have no legal powers. The donor can register the lasting power of attorney while he or she is mentally capable, or you can apply to register the lasting power of attorney.
There is no power for you to make any decision for the donor under the lasting power of attorney during the registration process. However, if the donor has capacity and needs some urgent assistance with his or her finances, a general power of attorney can be set up to cover this interim period. Read more about how temporary powers of attorney can keep things moving.
Things you can and can’t do with power of attorney
What you can do as an attorney
Property and financial affairs lasting power of attorney
When acting under a property and financial lasting power of attorney you will be able to do most things the donor could have done in relation to his or her finances and property, provided there are no restrictions in the document. Some examples of what this might include are:
- 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 state benefits, pensions, allowances and rebates (unless someone called an ‘appointee’ has already been appointed to do this and their appointment has previously been notified to the Department for Work and Pensions, 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 and other bills
- Insuring, maintaining and repairing the donor’s property
- Investing the donor’s savings and, as necessary appointing, or liaising with an investment manager in regard to the donor’s investments
- 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
However, in all cases, these decisions can only be made if acting in the best interests of the donor.
Health and welfare lasting power of attorney
When acting under a health and welfare lasting power of attorney, unless the document restricts you, you will be able to make decisions about the donor’s personal welfare, health and care, which could include:
- Where the donor should live, and who they should live with;
- The donor’s day-to-day care, including diet and dress;
- Whom the donor may have contact with;
- Consenting to, or refusing, medical examination and/or treatment on the donor’s behalf;
- Arrangements required to be made for the donor to be given medical, dental and/or optical treatment;
- Assessments for, and provision of, community care services;
- Whether the donor should take part in social activities, leisure activities, education or training;
- The donor’s personal correspondence and papers;
- Rights of access to personal information about the donor; and/or
- Complaints about the donor’s care or treatment.
What you can’t do as an attorney
Whether you’re an attorney acting under a Property and financial affairs lasting power of attorney or a health and welfare lasting power of attorney, you cannot:
- change the donor’s will; or
- gift their assets away.
Your legal responsibilities and duties as an attorney
In your role as an attorney, you have important duties and responsibilities. These are set out in the Mental Capacity Act 2005 and are explained in the Mental Capacity Act Code of Practice,
However, the following provisions are particularly important:
1. You must follow the principles set out in section one of the Act:
Principle 1 - It should be assumed that everyone has capacity to make his or her own decisions, unless it is proved otherwise.
Principle 2 - A person should be provided with 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.
Principle 3 - A person should not be treated as lacking capacity just because they make an unwise decision.
Principle 4 - Actions or decisions carried out on behalf of someone who lacks capacity must be in that person’s best interests.
Principle 5 - Actions or decisions carried out on behalf of someone who lacks capacity should limit their own rights and freedom of action as little as possible.
2. You must always act in the donor’s best interests
There is guidance in chapter five of the Code of Practice to help you. However, in general terms you need to consider the donor’s past and present wishes and feelings, beliefs and values and, where practical and appropriate, consult with:
(a) anyone caring for the donor;
(b) close relatives and anyone else with an interest in their welfare; and/or
(c) other attorneys appointed by the donor.
Always check whether the donor has sufficient mental capacity to make a particular decision themselves. Remember, you can act under the property and financial lasting power of attorney if the donor does have mental capacity, if they have asked you to act in such circumstances, and there are no restrictions in the document. However, you can only act under a health and welfare lasting power of attorney if the donor does not have sufficient mental capacity to make that particular health and welfare decision.
3. Only make those decisions the lasting power of attorney gives you authority to make
For example, if you are only acting under a property and financial affairs lasting power of attorney, you cannot make decisions about the donor’s personal care, such as medical treatment. If the lasting power of attorney 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.
Likewise, if you are only appointed as a health and welfare attorney, you have no power to make decisions about the donor’s financial investments.
4. Other duties under a lasting power of attorney
- Apply certain standards of care and skills (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 only 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 the role without telling the donor and the Court;
- Keep accounts if you are a financial attorney;
- Keep the donor’s money and property separate from your own if you are a financial attorney
- In relation to end-of-life decisions, where authorised under a health and welfare attorney, do not be motivated by the desire to bring about the donor’s death (you may wish to save the donor suffering and to comply with his or her wishes); and/or
- Notify the Office of the Public Guardian, if the donor dies, or recovers.
How do I decide if the donor has sufficient mental capacity?
The Mental Capacity Act sets out a two-stage test of capacity:
- 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.
- Does the impairment or disturbance mean that the person is unable to make a specific decision? This stage can only be reached if you have taken all practical steps to support the donor in making the relevant decision and this has failed.
A person is considered to be unable to make a decision if they cannot, on the balance of probabilities:
- understand information about the decision to be made (the Act calls this ‘relevant information’);
- retain that information in their mind;
- weigh that information as part of the decision-making process; and
- communicate their decision, by talking, using sign language or by any other means.
The Mental Capacity Code of Practice offers useful and practical examples in chapter four of the code of practice.
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 ensure you have followed the suggested steps for establishing ‘that the donor lacks capacity to make a particular decision’.
Can an attorney make gifts?
You have very limited powers to make gifts from the donor’s property when acting as financial attorney. You can only make gifts to people who are related to, or connected with, the donor (including attorneys) on specific occasions such as:
- births or birthdays;
- weddings or wedding anniversaries;
- civil partnership ceremonies or anniversaries; or
- any other occasions when family, friends or associates usually give presents.
You can continue gifts to charities if the donor was already making regular payments, or even made payments from time to time. You must remember that gifts must be reasonable in relation to the donor’s own assets and to act in the donor’s best interests.
Recent cases on this topic have provided further guidance on making gifts. Therefore, we advise that you seek professional advice before making any gift to ensure you are complying with the law in this area.
Can I make a will or codicil on behalf of the donor when acting under a property and financial lasting power of attorney?
Unless you apply to the Court of Protection for an order in this regard (and that application is successful), then you’re unable to make a will or codicil on behalf of the donor.
Getting help with understanding the role of an attorney
Putting in place a power of attorney can give a donor peace of mind that their affairs remain in good order, their assets are protected and their wishes are carried out.
Whether you’ve agreed to act as an attorney for someone else, or you’re considering putting powers of attorney in place, our team of private client lawyers will guide you through the process and ensure you understand the level of authority an attorney will have.