A Lasting Power of Attorney (LPA) is a vital legal document that allows a trusted individual (the attorney) to make important decisions on behalf of another person (the donor) should they lose the capacity to do so themselves. However, acting as an attorney comes with significant legal responsibilities, and it is essential to understand what you can and cannot do. In this post, we outline the key duties of an attorney under an LPA for property and financial affairs, common pitfalls to avoid, and how our firm can support you in fulfilling your role correctly.

Key Duties of an Attorney

Under the Mental Capacity Act 2005, attorneys must adhere to five key principles:

1. Act in the donor’s best interests – Every decision must prioritise the donor’s well-being, ensuring their needs and preferences are considered.
2. Follow the donor’s instructions – If the LPA includes specific restrictions or guidance, you must abide by them.
3. Maintain proper financial records – Keeping clear, detailed accounts of all transactions made on the donor’s behalf is crucial to demonstrate accountability.
4. Avoid conflicts of interest – Attorneys cannot use the donor’s money for their own benefit or transfer assets in a way that might be considered self-serving.
5. Consult with the donor where possible – If the donor still has some capacity to make decisions, they should be involved as much as possible in financial choices.

What Attorneys Cannot Do

While attorneys have broad authority under an LPA, there are several legal restrictions on their powers:

• No gifting beyond reasonable levels – Attorneys can only make gifts on behalf of the donor in limited circumstances, such as birthdays or weddings, and even then, the gifts must be reasonable in size and aligned with what the donor would have done.
• No changing the donor’s will – Attorneys cannot amend or create a will for the donor, even if they believe it reflects their wishes.
• No self-dealing or benefiting personally – Using the donor’s money for personal expenses, loans, or investments for the attorney’s benefit is strictly prohibited.
• No delegating authority – An attorney cannot pass their responsibilities to another person or appoint someone else to act in their place.
• No making decisions after the donor’s death – The LPA ceases to be valid upon the donor’s passing, at which point the executor of their will takes over financial matters.

Common Mistakes Attorneys Make

Many attorneys unknowingly breach their duties, which can lead to legal consequences, including removal from their role or even prosecution. Common errors include:

• Making large, unauthorised gifts to family members or charities.
• Mixing personal and donor funds in joint accounts.
• Selling the donor’s property without proper consideration of their best interests.
• Failing to keep accurate financial records, making it difficult to justify transactions.
• Making unilateral decisions without consulting other attorneys (if appointed jointly).

How Our Firm Can Help

Acting as an attorney can be a daunting responsibility, especially when navigating complex financial matters. Our firm provides expert legal guidance to ensure attorneys remain compliant with their obligations while making sound decisions in the donor’s best interests.

We can assist with:

• Interpreting the LPA to understand your specific powers and duties.
• Providing financial oversight to prevent inadvertent breaches of the Mental Capacity Act.
• Helping attorneys keep accurate records to avoid scrutiny from the Office of the Public Guardian (OPG).
• Advising on major financial decisions such as selling property or managing investments.
• Defending attorneys against allegations of misuse of funds if disputes arise within families.

If you have been appointed as an attorney under an LPA and are unsure about your responsibilities, or if you suspect another attorney is acting improperly, contact our firm today for expert legal advice. We can guide you through your role and ensure that you act within the law, protecting both yourself and the donor from potential legal issues.

You can also complete an online enquiry form. One of the Wollens team will contact you as soon as they are available.