Key Facts
- A Lasting Power of Attorney is a legal document that allows you to appoint someone you trust to make decisions on your behalf if you lose mental capacity in the future.
- The most fundamental duty of an attorney under an LPA is the fiduciary duty to act in the donor’s best interests at all times.
- An attorney must act honestly and with integrity in all their dealings on behalf of the donor.
- Attorneys must keep detailed records of all decisions they make and all spending on the donor’s behalf.
- Whilst the attorney holds the decision making power, they must not act in isolation.
When you create a Lasting Power of Attorney, one of the first questions people ask is what their attorney will actually be allowed to do. Understanding what can an attorney do under LPA UK is essential for anyone considering this important step in their estate planning. An attorney appointed under an LPA has substantial responsibilities and legal duties that are set out in the Mental Capacity Act 2005. These duties ensure that your interests are protected and that your attorney acts with integrity and honesty.
Whether you are considering appointing an attorney or have recently been appointed as one, knowing the scope of their authority and their legal obligations is crucial. This guide explores the key duties and responsibilities that attorneys must fulfil, the limits of their power, and the oversight mechanisms in place to protect donors.
What Is an LPA and Who Can Be an Attorney?
A Lasting Power of Attorney is a legal document that allows you to appoint someone you trust to make decisions on your behalf if you lose mental capacity in the future. An attorney under an LPA can be a family member, friend, or professional, and they must be at least 18 years old and of sound mind. The document comes in two forms: Property and Financial Affairs LPA, and Health and Welfare LPA. Before taking on this role, potential attorneys should understand that they will be bound by strict legal duties and will be accountable for their actions. The attorney’s authority only comes into effect when the donor has lost capacity, except in the case of a Property and Financial Affairs LPA, which can be used immediately if the donor consents.
What Is The Fiduciary Duty: Acting in the Donor’s Best Interests?
The most fundamental duty of an attorney under an LPA is the fiduciary duty to act in the donor’s best interests at all times. This is not a suggestion but a legal obligation that comes with serious consequences if breached. Attorneys must make decisions that benefit the donor, not themselves or other third parties.
The fiduciary duty means putting the donor’s interests above your own and making choices that you reasonably believe are in line with what the donor would have wanted. This applies to all decisions, whether financial, medical, or personal. Breach of fiduciary duty can result in personal liability, and the Court of Protection has authority to investigate and sanction attorneys who fail to meet this obligation.
What Is Acting Honestly, with Integrity, and in Accordance with Capacity Law?
An attorney must act honestly and with integrity in all their dealings on behalf of the donor. This means being truthful in all communications, avoiding deception, and conducting themselves in a manner that honourable people would regard as acceptable. The attorney must also comply with the Mental Capacity Act 2005 and its principles.
These principles include respecting the donor’s past and present wishes, feelings, beliefs, and values. For Health and Welfare LPA decisions, attorneys can only act when the donor genuinely lacks capacity to make the decision themselves. They must not assume incapacity but must make every effort to enable the donor to participate in decisions if possible. Treating the donor with dignity and respect is central to this duty.
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What Is Record Keeping and Financial Accountability?
Attorneys must keep detailed records of all decisions they make and all spending on the donor’s behalf. Financial accountability is particularly important: attorneys must keep the donor’s money separate from their own and must not benefit from the donor’s assets unless the LPA explicitly permits it. Every transaction should be documented, and receipts should be kept.
The Office of the Public Guardian may request to see these records, and if an attorney fails to maintain proper accounts, this can lead to investigations and legal action. Good record keeping is not just a legal requirement but also protects the attorney by providing clear evidence that they have acted appropriately and in the donor’s best interests.
What Is Consultation and Consideration of Others’ Views?
Whilst the attorney holds the decision making power, they must not act in isolation. The attorney should consider the views of people the donor would want consulted, such as family members, carers, or close friends. This duty reflects the principle that even though the donor may lack capacity, their values and relationships should still be respected.
If the LPA includes specific instructions and preferences from the donor, the attorney must follow these carefully. Consultation is not the same as getting permission; the attorney still makes the final decision, but they must take into account the views of relevant people and give genuine consideration to what the donor would have wanted.
What Is The Limits of Attorney Authority?
An attorney’s power is not unlimited. An attorney cannot delegate their authority unless the LPA specifically permits this. This means the attorney cannot simply hand over their responsibilities to someone else without explicit authorisation in the document.
For Health and Welfare decisions, an attorney can only act when the donor lacks capacity. They cannot make decisions on behalf of someone who still has the capacity to decide for themselves. Additionally, certain decisions are always excluded: an attorney cannot marry or divorce the donor, cannot adopt on their behalf, and cannot make gifts of significant value without express permission in the LPA. Understanding these boundaries is crucial for attorneys to avoid overstepping their authority.
What Is Oversight and Accountability?
An attorney is not beyond scrutiny. The Office of the Public Guardian and the Court of Protection provide oversight of attorneys’ conduct. Anyone can report concerns about an attorney’s behaviour, and the OPG has the power to investigate and take action if an attorney is not fulfilling their duties properly.
The OPG can require attorneys to provide accounts, can suspend an attorney’s powers, or can refer cases to the Court of Protection for a formal hearing. This oversight mechanism provides important protection for donors whose capacity is compromised. If you have concerns about how an attorney is managing an LPA, you can report a concern about an LPA attorney to the OPG.
How Do You Choose the Right Attorney?
Because attorneys have such significant responsibilities and legal duties, choosing the right attorney for your LPA is one of the most important decisions you will make. The person you appoint must be trustworthy, reliable, and willing to take their obligations seriously. You should discuss the role with them beforehand and ensure they understand what will be required of them.
Consider joint vs joint and several attorneys arrangements, as appointing multiple attorneys can provide additional checks and balances. If you appoint a professional or family member who may have conflicts of interest, make sure this is addressed in the LPA documentation. Understanding whether a family member can be your attorney is also an important consideration.
What Is Liability and Breach of Duty?
An attorney can be held personally liable if they breach their duties under the LPA. If an attorney acts dishonestly, fails to maintain proper accounts, spends the donor’s money for their own benefit, or makes decisions contrary to the donor’s wishes and values, they can face legal action.
The donor, or their representatives if the donor lacks capacity, can bring proceedings in the Court of Protection. This might result in requiring the attorney to repay money, removal from the role, or sanctions. The seriousness of these potential consequences underscores why attorneys must take their responsibilities seriously and must understand the legal framework governing their actions.
Please note: Lasting Powers of Attorney apply in England and Wales only. Different rules apply in Scotland and Northern Ireland.
Frequently Asked Questions
Can an attorney act without the donor’s knowledge?
An attorney can act without the donor’s explicit consent if the donor lacks capacity to understand the decision. However, attorneys must always consider the donor’s past wishes and preferences. For Property and Financial Affairs LPAs, the attorney can only act without consent if the donor has lost capacity. Secrecy or deliberately keeping the donor in the dark would breach the duty to respect the donor’s values.
Can an attorney refuse to act?
Yes. Being appointed as an attorney does not compel someone to act. An attorney can disclaim the role at any time, either before or after the donor loses capacity. However, if the attorney does accept the role and begins to act, they are then legally bound by all the duties and responsibilities of the LPA. Refusal to act should be communicated clearly to the donor or their family.
What happens if an attorney dies?
If an attorney dies, their power under the LPA ceases immediately. If there are replacement attorneys named in the LPA, they step in automatically. If there are no replacements, the donor, if they have capacity, can appoint new attorneys. Otherwise, family members may need to apply to the Court of Protection for a deputyship order.
Can an attorney receive payment for their work?
An attorney can only receive payment if the LPA explicitly authorises it or if the attorney is a professional where payment is standard practice. A family member acting as an attorney is usually expected to act voluntarily, unless the LPA document states otherwise. Any payment taken without authorisation could constitute a breach of fiduciary duty.
How often must an attorney account for their actions?
There is no fixed schedule, but attorneys must keep comprehensive records at all times. The Office of the Public Guardian can request accounts and evidence of spending at any point. Additionally, if a complaint is made about the attorney, the OPG can require them to provide a full accounting. Best practice is to maintain records continuously so they are always available for scrutiny.
TL;DR: Legal Duties and Responsibilities Under Lasting Power of Attorney
An attorney under a Lasting Power of Attorney has substantial legal responsibilities and duties designed to protect the donor.
- Attorneys must act in the donor’s best interests at all times and are bound by fiduciary duty under the Mental Capacity Act 2005.
- Attorneys must act honestly, with integrity, and must keep detailed records of all decisions and spending to maintain financial accountability.
- Attorneys must respect the donor’s past and present wishes, beliefs, and values, and must consider the views of people the donor would want consulted.
- Attorneys cannot delegate without permission, cannot act on Health and Welfare matters when capacity exists, and are subject to oversight by the Office of the Public Guardian.
- Breach of duty can result in personal liability, removal from the role, and investigation by the Court of Protection or the Office of the Public Guardian.
More From Elwyn & Mabel
Creating a Lasting Power of Attorney is one of the most important steps in planning for the future. Download the free Lasting Power of Attorney Checklist for a step by step guide to getting your LPA in place, explained in plain language.
For personalised guidance on creating a Lasting Power of Attorney or any aspect of estate planning, book a free consultation with Elwyn & Mabel. The team will answer questions, review individual circumstances, and help put the right plan in place.