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The use of donor's funds by a registered lasting power of attorney

Posted on 27th August 2021 in Probate & Wills

Posted by

Sue Halfyard

Senior Associate and Chartered Legal Executive
The use of donor's funds by  a registered lasting power of attorney

Can an attorney under a registered lasting power of attorney (LPA) use a donor's funds to make payments to others or to make gifts on behalf of a donor?

Unless express instructions are included in the lasting power of attorney (LPA) for property and financial affairs about providing for others or making gifts, the general rule is that the LPA attorney does not have power to benefit others apart from the very restricted authority to make the usual Christmas and birthday gifts and to make gifts to any charity to whom the donor may have been making regular payments.   Even then these gifts are subject to the proviso that the amount is not unreasonable having considered all the circumstances and, in particular, the size of the donor's estate.

If an LPA does not include this express instruction or the instruction in the LPA is not clear then the attorney will need to:

  • Consider the position with the Office of the Public Guardian in the first instance to check the position.
  • Depending on what the result of that contact is, make an application to allow payments to others or to make gifts.

It can be considered by a donor than when making an LPA that they are giving their attorney power to deal with everything on their behalf but you will see from the above that this is not always the case.

It is always better to take legal advice before putting an LPA in place to ensure that it gives your attorney the necessary powers they need to deal with your affairs in the way in which you wish.

How can Tozers help?

To ensure an LPA is put in place correctly and promptly it is always recommended to speak to a solicitor. They are great tools for succession planning and cover property & finance, and health & welfare. To find out more, or for support with putting in place a Lasting Power of Attorney, please contact our dedicated Later Life Planning team who will be happy to help.

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