Many Property and Financial Affairs Attorneys are heading for trouble. They seem to think that being an attorney puts them in charge of how things are done. They don’t understand their rights and those of the donor (the person whose Lasting Power of Attorney they are running.) The starting point of the duties of an attorney is simple: they are there to help the donor to make their OWN decisions. If the attorney is making decisions without making serious efforts to help the donor make them instead, then they are in breach of their duties under the Mental Capacity Act.
Who are the Attorneys?
If there is only one, that is clear, but it is more prudent to have 2 or 3 – with at least one much younger. An 80-year-old acting as an attorney for a 95-year-old is generally not ideal.
Joint attorneys may act in 3 ways:
- Jointly and severally means they each have the power to act alone or with the others, so sorting out who is doing what is essential. But at least there is someone able to step straight in if another attorney dies, is ill, or just is not available in an emergency.
- Joint Attorneys must all agree on everything. If one dies, is ill etc, nothing can be done unless the Lasting Power of Attorney appoints reserves. It may be off to the Court of Protection to get someone appointed as a Deputy, ideally the remaining attorney/s.
- Some LPAs split decision making on different topics, so some issues may require everyone to agree, others may be made by only one – or a named – attorney.
Ultimately, if Attorneys cannot work together, they may be replaced by Deputies by the Court of Protection
What are the Duties of an attorney in reaching decisions:
The attorney MUST assume that the donor can make decisions unless it can be shown that they are not capable. Even then, the attorney should only make the decision if it is urgent, or even if they wait, the donors’ decision-making capacity will not return within the time scale available to make the decision. That is a tough call to make, and not being able to demonstrate why a decision was made by the attorney and not the donor may cause problems later. If there is no prospect of the donor being able to make the decision (with evidence preferably) then the attorney will have to make it – but very much bearing in mind what the donors’ wishes would have been, had they been able to express them.
Always bear in mind that the donor may well be able to make some decisions, but not others. And that situation might be better or worse the next day, or better in the morning than the afternoon, or better before or after eating. The attorney should experiment to see what helps. Sometimes large writing is better than speech – or small writing. Maybe sign language, or sometimes a foreign language the donor may be familiar with. There are many options to consider exploring, and you do need to make the effort.
If there are wishes, restrictions or conditions expressed in the Lasting Power of Attorney the duty of the attorney is to follow them, and to explore what the donors’ wishes would have been, perhaps talking to close friends and relatives about what the donor would have wished.
Restricting the donors’ freedom (deprivation of Liberty) is a whole subject on its’ own, and any decision should always try to make the minimum impact on the donors’ freedom. It isn’t about the donor perhaps being a nuisance to others, it is just about the donors’ wishes and needs.
Duties of an Attorney – evidence?
In the authors’ view, it may well be prudent for attorneys to key a diary of the decisions made, the efforts they made to help the donor make the decision, and the results. If there is any chance of arguments, I would say that a detailed diary is essential. Maybe even a video of discussion attempts. If a disgruntled friend or relative complains to the Office of the Public Guardian, the stronger the evidence you have, the fewer problems it will cause. Sometimes a well-intentioned friend or relative will be removed and replaced as an attorney by a solicitor or by Social Services, both of whom will charge for the work and probably understand far less about the needs of the donor. So better safe than sorry.
All financial transactions should be carefully recorded, and there should be no expenditure that is not accounted for – for the attorneys’ protection. Keep the bills, bank statements etc.
Duties of an attorney: how to get in trouble easily:
Probably the most common issue is making gifts, worse still, making gifts to yourself as an attorney. Out of pocket expenses are one thing, but buying computers and perhaps a car to make it easier to visit the donor is pretty certain to land you in trouble.
A recent Court ruling suggested that no significant gifts should be made unless the donor’s estate exceeds the Nil Rate Band of Inheritance Tax – £325,000 in 2020/21. If the estate is more than that, then gifts should be no more than those allowed as de minimis gifts under the Inheritance Tax Rules. That means giving people an absolute maximum of not more than £250 in any one tax year, with the possibility (if justified) of a single gift per year of up to £3000 (which can be split, but not on top of any individual’s £250 maximum.
Any gifts which might reduce the donors capacity to finance their life are open to challenge and should probably only be made with Court permission to be on the safe side. The duties of an attorney are not too onerous if they proceed with caution and goodwill.
Minor gifts which the donor was accustomed to giving on birthdays, charitable donations can continue – as long as the donor remains comfortably off. Gifts to yourself and those close to you will be scrupulously examined if there is a complaint to the Office of the Public Guardian.
Questions on the Duties of Attorneys under a Lasting Power of Attorney in England and Wales:
Can an attorney pay themselves? Not unless they are professional Attorneys and the LPA specifically permits payment.
Can an attorney pay themselves expenses? Provided they are genuine and provable and records are kept, this should not be a problem as long as the donor still has enough money to maintain their lifestyle. Expenses could include petrol (but not a car), phone calls (but probably not a phone). Many attorneys have fallen foul of straying beyond expenses into making gifts to themselves which is a very dangerous area.