Guidance for attorneys under a Lasting Power of Attorney
Please note this document is intended for guidance only and does not constitute legal advice. Please contact the Office of the Public Guardian for more information.
Always bear in mind that your primary duty is to act in the best interests of the donor. You may have to account for your actions if you fail to carry out your duties correctly.
The Mental Capacity Act 2005 and its Code of Practice set out an Attorney’s responsibilities. These include:
- A duty of care when making decisions on behalf of the donor
- To carry out directions that the donor has made in their LPA
- A duty not to delegate your powers under the LPA unless the LPA says you can
- Not to benefit yourself but to benefit the donor i.e. you should avoid any potential conflicts of interest and not profit or benefit personally from the position other than where specified within the LPA
- A duty of good faith i.e. you should act with honesty and integrity
- Keeping the donor’s affairs confidential unless the donor has specified otherwise
- Complying with directions of the Court of Protection
- Not giving up your role without discussing it with the donor if possible
You should read/refer to the Mental Capacity Act Code of Practice (particularly when assessing the donor’s capacity). This can be found at http://www.justice.gov.uk/downloads/protecting-the-vulnerable/mca/mca-code-practice-0509.pdf
The best interests of the donor
You must act in the donor’s best interests. In deciding what is in the donor’s best interests, bear in mind:
- their past and recent wishes
- their beliefs and values
- any views the donor has expressed in the past
- the views of family members, parents, carers, etc.
- the possibility that the donor could regain capacity
- any other factors that may be specific to a donor’s circumstances
- any guidance in the LPA or other written statement
Before you take any decision or act for the donor, you must consider whether you can make the decision or act in a way that is less restrictive of their rights and freedom but still achieves the given aim.
Does the Donor have capacity
Even after registering the LPA you should assume that the donor has capacity to make decisions themselves unless you establish that they cannot do so. A person’s capacity is assessed on a decision by decision basis. A person may have capacity to decide what to have for lunch but not where to live, or the capacity to take out cash from a machine or buy something in the local shop but not to sell their house or select their investment portfolio. Their capacity may fluctuate.
You can only act under a health and welfare LPA when the donor lacks capacity. Depending on the wording of a property and finance LPA you may be able to act whilst the donor has capacity.
You must help the donor to make as many of their own decisions as possible. You cannot treat them as unable to make the decision in question unless all practicable steps to help them to do so have been made without success, e.g. using picture boards or considering if there is a better time of day to consult them. You cannot treat them as unable to make the decision simply because they make an unwise decision.
To assess the donor’s capacity to make a decision themselves, consider whether the donor:
- has a general understanding of the decision that needs to be made
- has understanding of the consequences of the decision
- can weigh up information in order to make the decision themselves
- could make the decision themselves if you were to help them
- needs help communicating their decision or thinking
Donor has fluctuating capacity
The donor may have a gradually degenerating condition, or may have capacity on one day, but not on another. You should devise a strategy for dealing with this that allows you to:
- assess their capacity from time to time, and
- support them in making as many decisions as possible for themselves, whilst allowing you to make everyday decisions, e.g. decisions about social activities.
Donor disagrees with your decision
If the donor disagrees with your decision, and they have capacity, you must go with the donor’s view. If they lack capacity you can make the decision, bearing in mind that donor can inform the Office of the Public Guardian (“OPG”) if they are unhappy about your decision-making (and the OPG can ask you to explain your decisions).
How you are appointed – if more than one attorney
The donor’s instructions in their LPA states whether you, as an attorney, make decisions:
- together and separately
- together for some decisions and separately for others
If the donor selected together you must make those decisions with the other attorneys; if separately you can make decisions on your own or with the other attorneys. If you are appointed together and one of your co-attorneys dies, becomes incapable or, in the case of a property and finance LPA, becomes bankrupt you must contact the OPG as the appointment of you and all the other attorneys ends and, replacement attorneys, if listed in the LPA, take over. If you are appointed separately and an attorney dies etc. the OPG must be notified because that particular attorney can no longer act.
Concerns about co-attorneys
In making decisions with other attorneys, if you feel another attorney is not acting in accordance with their role and responsibilities you should:
- firstly, raise your concern with the attorney, then
- if you are not satisfied with the outcome, contact the OPG
The same applies if your decision-making is disputed. Keep notes or records of discussions so that you can demonstrate why you made the decision, and:
- firstly, raise your concern with the person(s) disputing your decision, then
- if you are not satisfied with the outcome, contact the OPG
Expenses and accounts
You can claim reasonable expenses for transport costs, telephone calls, postage etc. that you incur whilst acting on behalf of the donor.
Professional attorneys can charge fees. If you agree fees with the donor, they should record this in the LPA.
You should keep accounts and ensure you keep the donor’s money separate from your own.
Retiring from post
If you need to give up the role of attorney:
- before the LPA is registered you should tell the donor
- after the LPA has been registered you should give formal notice to the donor and the OPG
What you can make decisions about:
Under a health and welfare LPA, provided the donor has not placed restrictions, you can make decisions about:
- Where the donor lives – but since this may impact on selling their house you should discuss the decision with the donor’s property and financial affairs attorney(s) if they have a property and financial affairs LPA as well.
- Refusing consent to medical treatment
- Deciding what sort of care would be most suitable
You can only make decisions about life sustaining treatment if the donor has indicated that they want you to by signing Option A in section 5 of the LPA. In making such decisions you must not be motivated by a desire to bring about the person’s death.
A health and welfare LPA does not allow you to make decisions about the donor’s property and financial affairs (a separate property and financial affairs LPA would allow an attorney to make such decisions).
There may be occasions when you need to obtain personal or confidential information about the donor from a doctor, consultant, or solicitor, for example. Provided you are acting within the powers of the LPA this is appropriate, but you must only ask for information that is strictly relevant and maintain confidentially where at all possible.
You cannot make decisions about:
- consenting to marriage or a civil partnership
- consenting to a decree of divorce (or civil partnership dissolution) based on two year’s separation
- consenting to sex
- medical treatment for a mental disorder if the treatment is regulated by Part 4 of the Mental Health Act 1983
**Please note, this document is intended for guidance only. Every LPA is different and you must look at the document itself. If you have any doubts please contact the Office of the Public Guardian for further information **