How to Be an Attorney Under a Lasting Power of Attorney

How to Be an Attorney Under a Lasting Power of Attorney

Heather and Michael Bateman’s story highlight why we should all have LPA’s

Understanding Your Statutory Duties and Requirements

Becoming an attorney under a Lasting Power of Attorney (LPA) is a significant responsibility, entailing a commitment to act in another person’s best interest, particularly when they’re most vulnerable. Whether appointed for managing financial affairs or making critical health and welfare decisions, your role is crucial in ensuring the donor’s well-being and peace of mind.

Understanding Your Role and Powers

Firstly, it’s essential to understand the type of LPA you are appointed under. A Property and Financial Affairs LPA allows you to make decisions about the donor’s finances and property, while a Health and Welfare LPA covers decisions about their healthcare and personal welfare. Make sure you’re familiar with the specific terms of the LPA, as it may contain restrictions or guidance on how you should act.

1. Acting in the Donor’s Best Interests

Your primary duty is to always act in the best interests of the donor. This means considering their past and present wishes, feelings, beliefs, and values when making decisions. You should also consider the donor’s likely future needs and circumstances. If the donor can still make certain decisions, you should encourage and assist them to participate as much as possible

Example: If you’re making an investment decision as a financial affairs attorney, consider the donor’s risk tolerance and investment preferences they expressed when capable.

2. Maintaining Records and Transparency

Keep detailed records of decisions and transactions made on behalf of the donor, ensuring transparency and accountability. This documentation is crucial for accountability and provides a clear account of your actions.

Case Study: John, acting as an attorney, maintained a ledger detailing every financial transaction made for his aunt, including the rationale behind each decision, aligning with her known conservative approach to finances.

3. Make Decisions Independently

While you should consult with others where appropriate, particularly when making significant decisions, you must make the final decision independently, unless the LPA specifies that you must act jointly with another attorney.

4. Keep the Donor’s Money Separate

If you’re managing the donor’s financial affairs, keep their money and property separate from your own. This helps to avoid any conflicts of interest and ensures transparency and accountability in your role.

Having separate bank accounts is a good way to ensure their money is kept separately from your own.

5. Maintain Records

Keep detailed records of all decisions made and actions taken on behalf of the donor, especially concerning financial transactions. This can be crucial for accountability and may be required if there are ever any questions about your actions as an attorney.

Keeping a log to use as evidence will help if ever there are any concerns raised.

6. Respect Confidentiality

As an attorney, you’ll have access to sensitive and personal information about the donor. It’s vital to respect their privacy and confidentiality, sharing information only when necessary for the execution of your duties.

7. Comply with the Mental Capacity Act and the LPA Document

Your actions should comply with the principles of the Mental Capacity Act 2005 and the specific terms of the LPA document. Familiarise yourself with these to ensure your decisions are legally sound and reflect the donor’s intentions.

8. Avoid Conflicts of Interest

Acting as an attorney means putting the donor’s interests above your own. Avoid situations where your personal interests could conflict with your duties as an attorney. If such conflicts arise, they must be managed transparently and with the donor’s best interests in mind.

9. Seek Guidance When Needed

Don’t hesitate to seek professional advice if you’re unsure about a decision or how to carry out your duties. Legal professionals, financial advisors, and healthcare providers can offer valuable insights and guidance.

Key Duties Checklist

  • Understand the scope of your powers under the LPA.
  • Always act in the donor’s best interests.
  • Make independent decisions, consulting with others when appropriate.
  • Keep the donor’s funds separate from your own.
  • Maintain detailed records of all decisions and actions.
  • Respect the donor’s confidentiality.
  • Comply with the Mental Capacity Act 2005 and the LPA’s terms.

Additional Resources

For those looking to delve deeper into the responsibilities and legal framework surrounding an LPA, consider exploring the following resources:

Being an attorney under an LPA is a role that comes with great responsibility and trust. By understanding and adhering to your statutory duties, you can ensure that you act ethically, legally, and in the best interests of the donor. Remember, the role of an attorney is not just about legal compliance; it’s about being a trusted advocate, protector, and representative for someone who has placed their confidence in you.

Feel free to contact us with any queries or if you need assistance.

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