What attorneys can and can’t do

A Lasting Power of Attorney (LPA) is a legal form which allows a person (called the donor) to choose someone else to manage their affairs for them. The person chosen is known as an attorney. Under an LPA the person who is chosen to be an attorney can be a friend, relative or a professional person. The donor will be able to decide who that person will be and how much power they should have over their affairs. It’s worth bearing in mind that more than one person can be chosen to act as an attorney.

Although lasting power of attorney registration is relatively simple, the donor must have full capacity and understanding when executing the LPA. They must understand what they’re signing and what it means. An LPA can only be used once is has been registered with the Office of the Public Guardian.

Lasting Powers of Attorney come in two forms: Property & Financial Affairs, and Health & Welfare. Both have to be registered before they can be used.

The donor may appoint the same attorneys under both types of LPA, or different attorneys under each type of LPA. If different attorneys are appointed under each type of LPA, they may need to act together on some decisions. For example, the decision about where the donor lives should be taken by the attorneys under the personal welfare LPA. This may involve selling the donor’s property, which is a decision for the attorneys under the property and affairs LPA.

What Can You Do as an Attorney?

Provided there are no restrictions within the lasting power of attorney (LPA) or enduring power of attorney (EPA) you can usually do the following:

• Sell property (at market value)
• Buy property
• Maintain and repair their home
• Rent out property (although you do need to consider whether once you have paid out income tax, management fees, insurances, general maintenance and repairs the amount is sufficient for needs)
• Manage bank accounts
• Deal with investments
• Pay bills
• Claim benefits on behalf of the donor for their use
• Liaise with HMRC regarding their tax
• Purchase items needed for the donor
• Claim out of pocket expenses
• Make some gifts (there are strict rules around this so professional advice should be sought on the individual circumstances)

What Can’t You Do as an Attorney

• Make large financial gifts to people
• Manage discretionary funds with a fund manager
• Pay yourself a fee (unless authorised within the LPA or EPA)
• Mix your finances with theirs, you MUST keep separate bank accounts for them
• Make decisions which relate to health and welfare
• Use your position to benefit yourself or make a personal gain
• Purchase something from the donor at a below market rate without the Court of Protection’s authority
• Tax Planning without the Court of Protection’s authority

What Can You Do as an Attorney?

It is important to note that you can only act under a Health and Welfare LPA when the donor has lost capacity to make decisions. If that is the case and provided there are no restrictions within the LPA you can usually do the following:

• Decide where the donor lives
• Make decisions about medical treatments
• Decide on their day to day routine
• Make decisions about their personal care
• Give or refuse authority to life sustaining treatment (a Health LPA may replace any previous Living Will or Advance Decision to refuse life sustaining treatment)
• Make decisions in the donor’s best interests
• Consider what the individual would want

Important point: If a doctor suggests that they do something (such as exploratory investigations relating to someone who lacks capacity) and you do not want them to do it as you don’t feel it is in the donor’s best interests, you can ask the doctor to refrain from doing so. You can do this in your capacity as a Health Attorney. However, you cannot insist that a doctor does something if they do not feel it would benefit the donor.

What Can’t You Do as an Attorney

• Make decisions that restrict the donor’s freedom
• Make decisions when the donor still has capacity
• Make assumptions based on age, behaviour, condition or appearance

We have been looking after the legal affairs of people in Sussex and beyond for over 125 years. When it comes to Lasting Powers of Attorney, it’s vital that you seek experienced help to ensure that:

• • The right details are completed so that the LPA is valid – a rejection can result in extra costs
  • The right powers are given to the right people
  • The right information is given about your wishes, so your attorney can carry them out properly.

Your consultation can be over video call or by telephone, to discuss the LPA process, your wishes, and how we can put them into effect. Call 01273 604123 or email enquire@bbc-law.co.uk.