Updated: Jan 17
If you have been appointed as an attorney under a Lasting Power of Attorney (LPA), this means you will legally be able to make decisions for the ‘donor’ (person who appointed you) in accordance with their wishes in the document. It is your legal responsibility to always act honestly and in the best interests of the donor.
In last week’s blog post, we talked all about being an attorney under the Health & Welfare LPA, and this week we’re going to be discussing what being an attorney under the Property and Financial Affairs LPA entails.
The LPA covers the donor’s property and money matters including: using their bank and building society current and savings accounts; claiming, receiving and using their benefits, pensions and allowances; paying their household, care and other bills; buying or selling their home; saving or making and selling investments.
If you have been appointed as an attorney, you should have a chat with the donor about the following things:
Do they give birthday/Christmas presents to family or friends, and how much do they typically spend?
How much do they typically spend on things like clothes, entertainment, holidays?
Do they donate to any charities and how much?
What are their wishes when it comes to selling or renting out their home if they move into a care home?
Do they prefer to keep a minimum bank balance?
You should also make sure you know where important financial documents and information is kept such as: benefits, pension and tax letters; bills and bank or credit card statements; deeds of properties they own; the LPA document. If you can’t find the LPA document or it has been destroyed, the Office of the Public Guardian (OPG) will be able to make a copy for £35.
If the donor is able to make their own decisions, it’s your responsibility to help them reach them. It is the law that you must assume that someone can make decisions, unless it’s shown they can’t. If the donor doesn’t have the mental capacity to make a decision you should follow any LPA restrictions or conditions, follow the guidance in the LPA, ask others for advice on what they think the donor would do. You should never make assumptions based on the donor’s age, behaviour, condition or appearance. You should also avoid decisions that restrict their freedom as much as possible.
When it comes to managing the donor’s finances, it’s a good idea to keep accounts by noting down income and bigger outgoings and gifts. You should keep copies of bills for your records too. Unless you and the donor have a joint account or own a property together, it’s easier to keep theirs and your money separately.
If the donor owns a property, you should check that it’s registered in their name with Land Registry. If it’s not, you should register it for them.
Banks, building societies and utility companies will need proof that you are the attorney so you may need to show them documents such as the original LPA, and proof of identity and address such as a utility bill, passport or driver’s license.
If you’re making a gift on the donor’s behalf, remember that they can only be made if it is in their best interests. Spending must not harm their care or quality of life and the gifts must be affordable. You must not spend a lot more or differently than the donor usually would. It is against the law to make profits or benefit personally from acting for the donor.
You may not be the only attorney appointed in the LPA. It will lay out how you should act together. There are three options for this:
Jointly and severally (you can decide with other attorneys or by yourself)
Jointly (all attorneys must agree every decision)
Jointly for some decisions and jointly and severally for others (you must agree decisions that are set out in the LPA with all the attorneys. You can make others independently).
If a decision has to be made jointly but the attorneys cannot agree, the decision can’t be made. In this case, you should ask family and friends for their input on what the donor would want. Advocacy or mediation can be used. Alternatively, the OPG may be able to advise, or you may need to apply to the Court of Protection which could cost £1000 or more.
For more information about being an attorney under an LPA get in touch with Kindred Estate Planning today.