Navigating the Role of an Attorney Under a Lasting Power of Attorney
The concept of Lasting Power of Attorney (LPA) in the UK was established under the Mental Capacity Act 2005 and came into effect on 1 October 2007. LPAs replaced the former Enduring Powers of Attorney (EPA), which were narrower in scope. The primary purpose of LPAs is to meet the needs of individuals who foresee a time when they may lack the capacity to manage their own affairs.
Types of Lasting Power of Attorney
There are two main types of LPAs in the UK:
Health and Welfare LPA: This type allows an appointed person to make decisions about medical care, daily routines, and life-sustaining treatment when the donor is unable to do so . For example, if a loved one becomes seriously ill and cannot make decisions about their treatment, the attorney can step in and make those decisions on their behalf.
Property and Financial Affairs LPA: This type gives the attorney the power to make decisions about money and property, such as managing bank accounts, paying bills, collecting benefits, and selling the donor's home . For instance, if a loved one is unable to manage their finances due to a decline in mental capacity, the attorney can take over these responsibilities to ensure their financial affairs are in order.
Roles and Responsibilities of an Attorney
Acting as an attorney under an LPA is a significant commitment and comes with various responsibilities:
Follow Instructions and Preferences: Attorneys must follow any instructions and consider any preferences the donor included in the LPA. For example, if the donor has specified that they prefer to stay in their own home as long as possible, the attorney should respect this preference when making decisions about their care.
Act in the Donor's Best Interests: Attorneys must always act in the best interests of the donor. This means making decisions that benefit the donor and not the attorney or anyone else.
Help the Donor Make Their Own Decisions: Whenever possible, attorneys should help the donor make their own decisions rather than taking control. This can involve explaining options and consequences in a way that the donor can understand.
Respect Human and Civil Rights: Attorneys must respect the donor's human and civil rights. This includes ensuring the donor's dignity and privacy are maintained.
Keep Records and Manage Expenses: Attorneys should keep detailed records of decisions made and manage any expenses related to their role. This helps maintain transparency and accountability.
Do's and Don'ts of Acting as an Attorney
Do's:
Communicate Regularly: Keep in regular contact with the donor and other relevant parties to ensure decisions are made in the donor's best interests.
Seek Professional Advice: When in doubt, seek advice from legal or financial professionals to ensure decisions are sound and compliant with the law.
Document Everything: Maintain thorough records of all decisions and actions taken as an attorney.
Don'ts:
Act Without Registration: Ensure the LPA is registered with the Office of the Public Guardian before acting as an attorney.
Make Decisions for Personal Gain: Avoid making decisions that benefit the attorney personally rather than the donor.
Ignore the Donor's Wishes: Always consider the donor's preferences and instructions when making decisions.
Importance of LPA for Financial Planning
A Lasting Power of Attorney is crucial for financial planning as it ensures that an individual's financial affairs are managed effectively if they lose the capacity to do so themselves. By appointing a trusted attorney, individuals can have peace of mind knowing that their finances will be handled according to their wishes. This can include managing investments, paying bills, and ensuring that their financial obligations are met.
Summary
Acting as an attorney under an LPA is a complex and sensitive role, especially when family members are involved. It requires a deep understanding of the donor's wishes and a commitment to acting in their best interests. Given the complexities and potential conflicts that can arise, it is highly recommended to seek professional advice to navigate this responsibility effectively.
