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The Power of an Attorney – your responsibilities and duties explained

| Published on April 24, 2020

We are all currently experiencing unprecedented times due to coronavirus, and we at Humphries Kirk LLP are here to assist you.

What is a Lasting Power of Attorney?

A Lasting Power of Attorney (LPA) is a legal document that allows an individual to appoint others to act on their behalf in relation to their personal affairs.

There are two types of LPA:

  1. Lasting Power of Attorney for Property and Financial Affairs – this enables an individual (the “Donor”) to appoint one or more people to act as their Attorneys to assist them in dealing with their financial decisions. For example, you may be asked to assist them with their banking affairs.
  2. Lasting Power of Attorney for Health and Welfare decisions – this will enable you as an Attorney to make decisions about the Donor’s medical treatment and living arrangements if they are unable to manage their own affairs.

Many people will appoint family members or close friends to act on their behalf. Alternatively, an Attorney can be a professional appointment such as a Solicitor.

Powers given under the LPA

The LPA for Financial Affairs gives Attorneys the power to act on the Donor’s behalf either upon registration of the document and with the Donor’s consent, or if the Donor has lost capacity.

Unlike the Financial Affairs LPA, you cannot act as an Attorney under a Health and Welfare LPA unless the Donor has lost capacity. This may be permanent, for example a dementia diagnosis, or temporary incapacity whilst the Donor is undergoing medical treatment.

Acting as an Attorney can be extremely daunting, particularly where you are acting as an Attorney for the first time. An LPA can place significant responsibility on you and it is important therefore that any appointment as an Attorney is considered carefully to ensure you understand your rights and responsibilities. The Mental Capacity Act 2005 provides 5 principles which an Attorney must adhere to:

  1. You must assume the Donor can make their own decisions.
  2. An Attorney must support the Donor in their decision making and take practical steps to assist with this.
  3. An Attorney must not treat a Donor as unable to make a decision purely because the Donor does not think it is a wise decision.
  4. An Attorney must make decisions in the best interests of the Donor.
  5. Attorneys must make decisions which are less restrictive on the Donor’s rights and freedoms.

When appointed as an Attorney, it is important that you read the document carefully and take note of the powers and restrictions placed upon you. For example, a Financial Affairs LPA may include a provision which enables you to delegate investment decisions to a discretionary Investment Manager.

A Health and Welfare LPA may set out any guidance or instructions in respect of the type of care the Donor would like to receive, for example care in the home or care provided in a care or nursing home. Further, the appointment may give you the power to make decisions about life-sustaining treatment.

When does my power end?

Often, people will appoint attorneys to act on their behalf, in respect of their Financial Affairs prior to any loss of capacity. You may spend many years looking after the Donor’s affairs, but what happens when the Donor dies?

When someone dies, if they have appointed one or more other people to act on their behalf as an Attorney under LPAs, then those Attorneys may believe that the power continues after the Donor has died. However, any appointment made under an LPA will cease upon the Donor’s death.

Upon the Donor’s death, any powers to deal with that person’s affairs passes to their Executors, where there is a Will. If the Donor died without leaving a Will then the administrator will be responsible for dealing with the estate.

Often an Attorney and an Executor are the same person, but where you are not appointed to deal with the Donor’s affairs on their death then any power you had under the LPAs will automatically cease.

In these circumstances, any bank cards, cheque books or other documents you hold in respect of the Donor’s affairs should be returned to the Executor/Administrator to deal with.

Any entitlement to access the deceased’s bank account, for example, will end on their death and therefore, you should not access the account(s) after the date of the Donor’s death.

LPAs and coronavirus

Whilst the current restrictions are in place, many people may be unable to make important decisions for themselves or deal with their general affairs. This may be due to an underlying health condition, or being required to self-isolate. You may find yourself assisting family members/friends with their personal affairs. An LPA is a key document to assist during these difficult, unprecedented times.

Humphries Kirk LLP has a dedicated team of specialist lawyers who are able to assist with the preparation and registration of LPAs. We can also assist in advising Attorneys about their duties and responsibilities in acting as an Attorney.

Humphries Kirk LLP remains open and whilst, due to social distancing rules, we are unable to undertake any face-to-face meetings, we can provide advice and assistance via telephone and videoconferencing facilities such as Skype, WhatsApp and Zoom. If you would like more information about making an LPA or wish to discuss your appointment as an Attorney then please do not hesitate to contact us.

If you want to learn more about Lasting Powers of Attorney and your duties, Natasha Cross can be contacted at our Parkstone Office for further advice on 01202 715815 or n.cross@hklaw.uk.

 

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