Lasting Power of Attorney Property and Financial Affairs Guidance

YOUR ROLE AS LASTING POWER OF ATTORNEY PROPERTY AND FINANCIAL AFFAIRS

You have agreed to be an Attorney (also called Donee) of a Property and Affairs Lasting Power of Attorney. 

When Do I Need to Act?

Once the Lasting Power of Attorney has been registered with the Office of the Public Guardian and provided 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), either because he or she asks you to or because he or she has lost the capacity to deal with his or her property and affairs in whole or in part.

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 at any time.

There is no power to make any decision for the Donor under the Lasting Power of Attorney during the registration process. If the Lasting Power of Attorney has been registered but not used for some time, you should tell the Office of the Public Guardian when you begin to act under it, so that you can be sent relevant, up-to-date information about the working of Lasting Powers of Attorneys.

What Actions Can I Take As An Attorney?

You will be able to do anything the Donor could have done in relation to their finance and property, provided there are no restrictions in the document. This might include:

  • Buying or selling a 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 benefits, pensions, allowances and rebates (unless the Department for Work and Pensions has already appointed someone to do this 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
  • Insuring, maintaining and repairing the Donor’s property
  • Investing the Donor’s savings
  • 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 of NHS care, social care or adaptations of property
  • 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

When Acting In My Role As An Attorney What Do I Need To Consider?

In this role you have important duties and responsibilities, which are set out in the Mental Capacity Act 2005 and explained in the Code of Practice, with which you should be familiar. This can be accessed from the Office of the Public Guardian website

A hard copy can be purchased from TSO (The Stationery Office). You can contact them on 0870 600 5522 or by email customerservices@tso.co.uk

The following Principles set out in section 1 of the Act are particularly important, and must be followed:

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 have 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 rights and freedom of action as little as possible

  • You must always act in the Donor’s best interests.

There is guidance in chapter 5 of the Code of Practice to help you, but in general terms, you need to

  • Consider the Donor’s past and present wishes and feelings, beliefs and values.
  • Where practical and appropriate consult with
    • Anyone caring for the Donor
    • Close relatives and anyone else with an interest in their welfare
    • Other Attorneys appointed by the Donor
  • Always check whether the Donor has the capacity to make a particular decision themselves. You can act if the Donor does have capacity if they have asked you to act and there are no restrictions in the Lasting Power of Attorney.
  • Only make those decisions the Lasting Power of Attorney gives you authority to make ie:
    • If you are acting only under a Property and Affairs Lasting Power of Attorney, you cannot make decisions about the Donor’s personal care
    • 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 need to apply to the Court of Protection.

Other duties include having a duty to:

  • Apply certain standards of care and skill (duty of care) when making decisions
  • Carry out the Donor’s instruction
  • Not take advantage of your position and not benefit yourself, but benefit the Donor (fiduciary duty)
  • Not delegate decisions, unless authorised to do so
  • Act in good faith
  • Respect confidentiality
  • Comply with the directions of the Court of Protection
  • Not give up the role without telling the Donor and the Court
  • Keep accounts
  • Keep the Donor’s money and property separate from your own.

How Do I Decide Whether or Not the Donor Has Capacity?

You should use the test laid down in the Mental Capacity Act 2005, which comprises two stages:

Stage 1 – 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.

Stage 2 – Does the impairment or disturbance mean that the person is unable to make specific decisions? This stage can only be applied if you have taken all practical steps to support the Donor in making the decision and these have failed.

A person is considered to be unable to make a decision if they cannot on a 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, or
  • Communicate their decision (by talking, by using sign language or by any other means).

The Code of Practice offers practical examples which will be very helpful to you, but essentially you need to give the Donor as much opportunity to make his or her own decisions as possible before you decide to act. Chapter 4 of the Code of Practice sets out suggested steps for establishing ‘whether the Donor lacks capacity to make a particular decision’.

These notes are for general guidance only

Accreditations

The Society of Trust and Estate Practitioners (STEP), Solicitors for the Elderly (SFE) and Deputy Panel Members.

Our experienced team also includes a number of solicitors who are accredited by STEP, whose members are required to acquire additional technical qualifications and are subject to a Code of Professional Conduct, which requires them at all times to act with integrity and in a manner that inspires the confidence, respect and trust of their clients and of the wider community.  STEP members are also required to keep up to date with the latest legal, technical and regulatory developments.

SFE members are all specialists in older client law, but what sets SFE members apart from other lawyers are their specialist client care skills that enable them to advise and support older and vulnerable clients.  – click here to view our Code of Practice and Client Care Procedures.