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Guidance on How to Act as an Attorney
Earlier this month the Court of Protection issued guidance to those newly appointed to the role of attorney. For those attorneys whose remit is to deal with the financial issues of life there are a number of examples of the types of transactions the attorney may be asked to authorise and a reminder that an attorney must always act honestly and in the donor’s best interests.
Attorneys are told that the donor has trusted them to deal with their finances if they lose mental capacity in the future but they may be invited to help the donor immediately or at some point in the future. To enable the attorney to have the necessary understanding of the donor’s finances, the Court suggest the attorney talks with the donor about their views and knows where financial and important information is kept. The attorney will be helped if he understands the donor’s preferred spending patterns, donations to charity and approach to the provision of birthday gifts to family and friends.
Thereafter, the attorney may not be called on for some time to act, as the donor may be quite content to run their own affairs. It would be a good idea for the attorney to “keep in touch” periodically with the donor to find out if the donor has changed their investments or views on how they like to handle their money.
A point in time may arise when the attorney thinks that the donor’s mental capacity has started to deteriorate. The law says that mental capacity is the ability to make a specific decision at the time it needs to be made. Losing mental capacity may not be a result of a particular event or be distinguishable at a particular time in the donor’s life. The donor may be able to make some decisions but find others tricky. The attorney must try to enable the donor to make a decision by giving a clear explanation of the question which needs to be decided upon. If the donor is struggling to make a decision and it is not urgent then the advice to donor’s is to wait and try again on another day.
If the donor doesn’t have mental capacity then the attorney will be required to make a decision which is in the donor’s best interests. The decision will be governed by any restrictions detailed in the Lasting Power of Attorney made by the donor and should try to follow any guidance in that document. The attorney is reminded that each decision should be the best choice for the donor and not just one that suits other people.
If an attorney has taken over running the finances of a donor it is recommended they keep the individual’s money and assets separate from their own. The Court of Protection recognise that there may be times when the attorney already has a joint account with the donor or they own a home together. Particularly in the latter case, it will not be possible to hold this asset separately.
There are very particular rules about attorneys making gifts and if the attorney has in mind to make gifts of anything more than the type of gifts made by the donor at birthdays and Christmas there is separate guidance on this topic issued by the Court of Protection or the attorney should take legal advice. There are now several cases where the Court of Protection has disapproved of the approach taken by the attorney and taken steps to require the return of the gift!
The attorney’s tasks continue until the death of the donor. At that point, their appointment ceases. It may well be the same person who is the donor’s executor but there is then a different set of duties for this individual to fulfil.
If you wish to speak with our experienced team of wills and probate solicitors please don’t hesitate to call us on 01392 207020.