A recent article on the BBC website highlighted the dangers of appointing unsuitable attorneys under Lasting Powers of Attorney.
A Lasting Power of Attorney (LPA) is a legal document that allows a person (the donor) to appoint one or more individuals (known as attorneys) to make decisions on their behalf if they lose the mental capacity to do so in the future or if they wish for assistance with certain decisions.
Attorneys must comply with strict rules and act in the best interests of the donor at all times. Here are a list of things attorneys should not do:
1. Acting Outside Their Authority
- Attorneys can only act within the powers granted by the LPA.
- They cannot make decisions the donor could not legally make themselves, such as gifting large sums without Court approval.
- A Property and Financial Affairs LPA does not authorise health decisions, and vice versa.
2. Ignoring the Donor’s Wishes
- Attorneys must respect the donor’s past and present wishes and beliefs.
3. Acting Against the Donor’s Best Interests
- Attorneys cannot prioritise their own interests, exploit their position or make high-risk investments with the donor’s funds.
4. Misusing the Donor’s Money
- Attorneys must keep the donor’s finances separate from their own.
- They cannot use the donor’s money for personal benefit or give gifts beyond what is reasonable for occasions like birthdays or anniversaries.
5. Acting Prematurely
- Attorneys cannot act before the LPA is registered with the Office of the Public Guardian. This process can take some months, signing an LPA does not give the attorney the right to act immediately.
6. Overstepping on Health and Welfare
- Health and Welfare attorneys cannot make decisions about life-sustaining treatment unless explicitly authorised.
- They cannot force care decisions without considering the donor’s preferences.
7. Delegating Responsibilities
- Attorneys cannot delegate their authority or transfer responsibilities to others. This can be problematic unless the LPA specifically authorises delegation.
8. Disregarding Mental Capacity
- Attorneys must assess the donor’s capacity for each decision and involve them as much as possible, rather than assuming incapacity. Donors must be consulted where practicable.
9. Breaching Confidentiality
- Attorneys must safeguard the donor’s personal and financial information.
10. Neglecting Legal Obligations
- Attorneys must maintain accurate records of financial transactions and decisions.
- They must comply with guidance from the Office of the Public Guardian and anti-discrimination laws.
Consequences of Misconduct
Failing to adhere to these rules can result in the LPA being revoked, investigations by the Office of the Public Guardian and civil or criminal penalties. These can include fraud or theft charges. Attorneys should seek professional advice if there is any element of uncertainty.
Our solicitor Adam Penn says, “Donors should only choose their attorneys after careful consideration. In my opinion, solicitors should only act as professional attorneys in cases where they are best placed to serve the donors needs – not as a matter of routine. I appreciate that the claims in the BBC article are disputed by the law firm in question, but Four Oaks Legal Services do not act as attorneys for our clients, unless there is simply no one else to step in.”
If you need any help with LPAs or your duties as an attorney, please contact us below.