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Question

What are my duties as an attorney?

Answer

Accepting the role of attorney

Lasting (LPAs) and Enduring (EPAs) Power of Attorneys are legal documents which enable an individual to give another person or persons (the attorney(s)) authority to make certain decisions on their behalf.

If you have been appointed as an attorney, you have a number of important responsibilities. Being an attorney for a family member or friend could mean making difficult decisions about that person's finances or health and welfare (dependent on the type of LPA). You may have to make those decisions alone, unless appointed jointly with another attorney. You should think carefully about whether you are willing and able to make those decisions if the need arises

Your duties as an attorney depends on the type of LPA you are an attorney for. There are two types of LPA:

  • a property and affairs LPA, which allows your attorney authority to deal with your property and finances, as you specify
  • a welfare LPA, which allows your attorney to make welfare and health care decisions on your behalf, but only when you lack mental capacity to do so yourself. This could also extend, if you wish, to giving or refusing consent to the continuation of life sustaining treatment

Being appointed under a property and financial affairs LPA does not give you the authority to make health and welfare decisions - and vice versa - though you can be appointed as an attorney under both kinds of LPA.

In both instances it is key as an attorney that you;

  • Act in the donor's best interests and take care when making decisions on their behalf.
  • Act in accordance with the terms of the LPA.
  • Help the donor to make their own decisions where possible, rather than simply taking control.

When can you act as the Attorney?

You can only act when the LPA has been signed by all those involved, including the person making the power of attorney (the ‘donor’) and the attorneys, and has been certified by a suitable person. It must then be registered with the Office of the Public Guardian before it can be used.

Specific duties as an attorney:

Your duties as an attorney will be as laid out in the particular LPA. An attorney is a role which carries a great deal of power, where typically you will have duties:

  • to apply certain standards of care and skill
  • to carry out the donor's instructions as set out in the LPA and any wishes they express to you
  • not to take advantage of your position to benefit yourselves (this is called a fiduciary duty)
  • to act in good faith, with honesty and integrity
  • to keep the donor's affairs confidential unless there is good reason not to
  • not to delegate decisions, unless authorised to do so
  • not to give up the role of attorney without informing the donor and the Office of the Public Guardian.

Where the Attorney is acting under a Property & Affairs LPA they also have a duty:

  • to keep the donor's money and property separate from their own.
  • to keep accounts of transactions carried out on behalf of the donor

If the donor does not restrict their duties, under a Property & Affairs LPA an attorney's decisions might include:

  • buying/selling property
  • opening, closing or operating a bank or building society account
  • claiming/receiving the donor's benefits
  • receiving any income or monies on behalf of the donor
  • dealing with the donor's tax affairs
  • paying the donor's bills and household expenses
  • investing the donor's savings
  • arranging payment medical care/residential or nursing home and taking appropriate advice
  • applying for any funding entitlements for care requirements
  • buying a vehicle or necessary equipment for the donor
  • repaying any loans the donor has
  • making limited gifts.

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