Powers of Attorney: What Can And Can’t An Attorney Do?

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If you are looking to make a Lasting Power of Attorney, or someone has just appointed you to act on their behalf, you probably have many practical questions about what an attorney can and can’t do. At Burt Brill & Cardens, we are here to help.

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“I would like to take this opportunity to thank Burt Brill & Cardens for their highly professional support and service to my parents and extend my very sincere thanks for the professional but easy manner in which you have dealt with the matters and given me so much help and support.”


5 dangerous myths about who looks after your health & wealth: your free guide

There are a lot of myths and assumptions around LPAs. We know that if you or someone you love are thinking about making an LPA, it can be difficult to tell fact from fiction. That’s why we’ve designed our myth-busting guide, completely free of charge for you to download.

Our guide explains:

  • What a Lasting Power of Attorney is
  • Legal Jargon around LPAs
  • Who has control over your affairs
  • Who needs an LPA
  • If you need an LPA if you have a Will
  • If attorneys change your Will
  • Who makes financial decisions
  • How your welfare is protected under an LPA
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Lasting Powers of Attorney come in two forms: Property & Financial Affairs, and Health & Welfare. Both have to be registered before they can be used.

PROPERTY & FINANCIAL AFFAIRS

What You Can 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 You Can’t 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

HEALTH & WELFARE

What You Can 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 You Can’t 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

Find out more about Lasting Power of Attorney or get more support looking after older relatives.

Your LPA Consultation

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 in person at our offices, over Skype, or by telephone, to discuss the LPA process, your wishes, and how we can put them into effect.

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