Lasting Power of Attorney – managing someone else’s affairs

Few of us want to think about those close to us losing their mental capacity, let alone how we’d cope if they did. Yet, given our growing elderly population and increase in the number of people suffering from dementia, it’s something we need to consider.

Dementia currently affects 1 person in 14 aged 65 or over in the UK. While it’s not a natural part of aging, the number of people suffering from dementia increases with age; affecting 1in 6 over 80 and 1 in 3 over 95.

However, dementia doesn’t just affect older people. Over 40,000 people under 65 also have dementia.

With an ageing population (by 2040, nearly one in four people in the UK will be aged 65 or over according to ONS figures) and dementia sufferers predicted to rise to more than 1 million by 2025, helping to look after friends and family when they are unable to make decisions for themselves is also on the rise.

One of the most effective solutions is to set up a Lasting Power of Attorney (LPA), which lets families stay in control of their affairs now, while making things easier in the future.

What is a Lasting Power of Attorney (LPA)?

A Lasting Power of Attorney is a legal document which allows a person (the ‘donor’) to give someone they trust (the ‘attorney’) the legal authority to make decisions on their behalf.

Despite the term, you don’t need any legal experience to act as someone’s attorney.

You can read more about LPA’s in our ‘Lasting Power of Attorney – The Facts’ article.

What type of decisions does an attorney make?

You can make decisions on someone’s behalf if they appoint you using a Lasting Power of Attorney (LPA).

If you are an attorney, you have a high level of responsibility. The types of decisions you make depend on whether you’re a:

1. Property and financial affairs attorney

This involves making decisions about assets and finances on the donor’s behalf, these might include:

• Paying the mortgage and bills
• Buying and selling property
• Investing money
• Collecting wages, pensions or benefits
• Arranging property repairs

2. Health and Welfare attorney

This involves making decisions about the donor’s health and care, such as:

• Where they live
• Their medical care
• Their day to day schedule (who they see, what they do)
• Their diet
• They may also give you the ability to accept or refuse life-sustaining treatment.

A big difference between the two types of LPAs is that the donor may choose to use the property and financial affairs LPA while they still have the capacity, but a health and welfare LPA can only be used once they have lost that capacity.

Agreeing to be an attorney

The LPA will set out your responsibilities as Attorney, including the kind of decisions you’ll be able to make and under what circumstances.

Agreeing to be someone’s attorney is a huge undertaking and could involve difficult decisions about issues such as healthcare or finances, so it is vital you give it careful consideration before accepting.

If you feel unable to take on these responsibilities you should let the donor know as soon as possible, so they have time to find another attorney.

What are my legal responsibilities under Lasting Power of Attorney?

As an attorney, you have a duty to:

• Act in the best interests of the donor.
• Only make decisions that are in accordance with the terms of the LPA.
• Help the donor to make their own decisions where possible, rather than simply taking control.
• Act based on the principles of the Mental Capacity Act 2005.
• Keep accounts and financial records and produce them to the Office of the Public Guardian and/or to the Court of Protection on request.

More detailed information about Lasting Power of Attorney responsibilities is available in the Mental Capacity Act Code of Practice.

Practical issues regarding Lasting Power of Attorney responsibilities

As well as your legal responsibilities, there are several practical issues that need to be considered when acting as an attorney:

• As a property and financial affairs attorney, you are required to keep the donor’s finances and possessions separate from your own.
• If you need to make a decision but are unsure what the best decision is, you can seek advice (i.e. consult a financial adviser about investments). The ultimate decision stays with you though, as you cannot delegate decision-making unless the LPA sanctions it.
• If you feel a decision is not within your powers, you can apply to the Court of Protection.

When do I stop acting as an attorney?

If the donor dies: you should send the LPA together with an certified copies and a copy of the death certificate to the Office of the Public Guardian. Unless you are the executor of their will, you have no further power to act for the donor.

If you no longer wish to be an attorney: you can ‘disclaim’ the role. You should give formal notice to the donor if the LPA has not yet been registered. If it has then you must contact the Office of the Public Guardian.

You must stop acting as an attorney if:

• the donor removes you from theirLPA
• you lose mental capacity and can’t make decisions any more
• you are a property and financial affairs attorney and you become bankrupt or subject to a debt relief order
• you are married to or in a civil partnership with the donor and you get a divorce or an annulment (unless theLPA says you can keep acting as an attorney)
• you are a joint attorney and another attorney stops acting, unless theLPA says you can carry on making decisions

How We Can Help

It might seem as though there are lots of decisions to make when you’re planning for the future. But we’re here to help.

At Osborne Morris & Morgan we can help with all stages of putting a Lasting Power of Attorney in place.

If an LPA has not been put been in place, we can also help with the application for Deputyship and the resulting requirements.

For a confidential, obligation-free discussion contact a member of our friendly, experienced team on 01525 378177 or email us on info@ommlaw.co.uk.