Acting as an Attorney for Finance & Property Affairs: The Dos and Don’ts

By April 14, 2019Wills and Probate

Acting as an Attorney for someone’s financial and property affairs is a great deal of responsibility. Before agreeing to act, you should consider whether you are prepared to undertake the often time consuming task and ensure you have a full understanding of what you can and can’t do as an Attorney.

Consider How You Are Appointed

Firstly, you should ascertain whether you are the sole Attorney, a joint Attorney or a Replacement Attorney. If you are a joint Attorney, you should understand whether you are appointed to act Jointly or Jointly and Severally with your fellow Attorneys.

When Attorneys are appointed to act Jointly, all named Attorneys must agree before a decision can be made on the Donor’s behalf. You cannot make any decisions on your own. If you do make decisions on your own and this is made known to the Office of the Public Guardian, they could revoke your powers as an Attorney.  

When appointed Joint and Severally, Attorneys can act together or separately. This means any one Attorney could make decisions on the Donor’s behalf without consulting the others. You should still have regard to the Donor’s wishes and, if the Donor wanted you to, you should consider acting unanimously where appropriate. If disputes arise between Attorneys the Office of the Public Guardian will consider what is in the best interests of the Donor and they could revoke your powers as an Attorney.

If you are appointed as a Replacement Attorney you can only act when the first named Attorneys are unable to act on a permanent basis, for example, they have passed away or are suffering a mental impairment that will never improve. You cannot act where the first named Attorneys are unable to act on a temporary basis, for example, they are away on holiday or suffering a momentary loss of capacity.

What Does The Finance & Property LPA Allow You To Do?

This LPA allows you to deal with the Donor’s financial affairs including:

  1. The buying and selling of property;
  2. Operating bank accounts;
  3. Dealing with tax affairs;
  4. Paying bills on the Donor’ behalf; and
  5. Claiming benefits.

Who Can Act as an Attorney?

You must:

  1. Be over the age of 18;
  2. Have mental capacity to make decisions on the Donor’s behalf; and
  3. Not have been made bankrupt.

Mental Capacity Act 2005 and How it Applies to You as an Attorney

You are obliged to act in the Donor’s best interests at all times, to consult any guidance that the Donor gave in the documents and you must follow the general law.  You will be obliged to follow the provisions of the Mental Capacity Act 2005 in particular and encourage the Donor to make decisions for themselves far as they are able. You also have the following duties:

  1. not to take advantage of the position of the Attorney;
  2. not to delegate unless authorised to do so;
  3. to act in good faith;
  4. to treat Donor matters as confidential;
  5. to comply with directions of the Court of Protection;
  6. not to disclaim without notifying the Donor, the other Attorneys, and the Office of the Public Guardian;
  7. to comply with the relevant guidance;
  8. keep accounts; and
  9. keep the Donor’s money and property separate from their own.

It is important you keep good records because the Office of the Public perform random spot checks but also because the records can be used as evidence should anyone try to claim you were acting improperly.  

Generally, Attorneys tend to follow the duties listed above in points 1 to 7 without issue, however, we often see Attorneys who make the mistake of not keeping the Donor’s money and property separate from their own. This could be that the Attorney keeps their name as a joint account holder on a bank account, or transfers the Donor’s property into their own names. If you fail to keep the Donor’s money and property separate from your own then the Office of the Public Guardian will likely revoke your powers as an Attorney and may investigate the transactions for fraud.

Abuse of Your Position

You can be reported to the Office of the Public Guardian by the Donor, fellow Attorneys, other family members or concerned members of the public. If you are reported to the Office of the Public Guardian it is likely they will launch an “initial investigation” to see whether the concerns raised have any merit. You can often prevent a full investigation by presenting proper accounts and receipts that show you have been acting appropriately.

If the Office of the Public Guardian have concerns, the will launch a full investigation. They could suspend or limit your powers as an Attorney until such time as they have satisfied their queries. If the Office of the Public Guardian finds against you, your powers could be revoked and, depending on the severity of the matter, you could face criminal charges. Sadly, there are many cases of Attorneys who have abused their position and, as a result, have received lengthy prison sentences.

The Donor’s Will

Please note, the LPA does not grant you the right to see or handle the Donor‘s Will, unless there is a specific instruction in the LPAs for you to do so. If the Donor loses mental capacity, the Will cannot be disclosed without a Court order or until such time as the Donor passes away, in which case the Executors of the Will have rights to see and handle the Will.

If You Are Unsure How to Act

If, whilst performing your duties as an Attorney, you are ever unsure of your responsibilities or how you should act it is important you seek legal advice. If you are deemed to act improperly as an Attorney, even if you were acting in good faith, the Office of the Public Guardian have the power to revoke your appointment entirely.   

If you would like to discuss your appointment as an Attorney in more details please contact the Private Client Team on 01753 486777.