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What can an attorney do under a Lasting Power of Attorney?

View profile for Hannah McGavin
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If you have been appointed as someone’s attorney under a Lasting Power of Attorney you will have the authority to make certain decisions on their behalf.

There are two types of Lasting Power of Attorney – one in respect of property and financial affairs and one in respect of health and welfare.  When someone loses the ability to manage their own affairs, their attorney has the authority to step in and deal with matters for them once they have registered the Lasting Power of Attorney with the Office of the Public Guardian.

Attorney for property and financial affairs

A property and financial affairs attorney is generally responsible for dealing with all of the donor’s financial matters, to include:

  • Managing bank accounts and investments
  • Paying bills, to include tax liabilities
  • Claiming benefits
  • Home repairs and maintenance
  • Renting out property
  • Buying items on behalf of the donor

There are rules in respect of some transactions, such as the giving of gifts. Only gifts of a reasonable value can be given and these should be in accordance with what the donor can afford and take into account issues such as whether they gave similar gifts while they still had mental capacity.

The donor may have included some restrictions on the Lasting Power of Attorney, for example, in respect of the sale of their property. In any event, it can be advisable to seek consent from the Court of Protection before selling someone’s home on their behalf. You will also need consent if you wish to deal with tax planning for the donor.

An attorney cannot profit from their role, nor can they purchase anything from the donor at below market rate without the authority of the Court of Protection.

A property and financial affairs Lasting Power of Attorney can be used while the donor still has capacity, for example, if they need help because of mobility issues.

Attorney for health and welfare

A health and welfare Lasting Power of Attorney can only be used when the donor has lost the ability to make their own decisions.

Unless the document contains any restrictions to the contrary, the attorney can deal with the following issues:

  • Where the donor will live
  • Who they will see
  • What their day-to-day routine will look like
  • What personal care they will receive
  • What medical treatments they will have
  • Refusal of life-sustaining treatment

You are required to act in the best interests of the donor in making decisions for them and to consider what they would want if they were able to communicate this themselves.

An attorney should not make assumptions based on the donor’s age, appearance or condition, nor can the donor’s freedom be restricted.

It is vital that the Lasting Powers of Attorney are professional drafted to ensure that they include all the information that will be needed to enable the attorneys to act and fulfil the donor’s specific wishes. For example, if the donor has investments that are managed by an investments company or a financial advisor, they will only be able to continue with this arrangement if specific powers are contained in the Lasting Powers of Attorney.

If you would like to speak to one of our experts, please contact our Farnham office on 01252 733770 or online.

This article is not a definitive statement of the law. It is designed as a free update on the law at the time of publishing. It is not a substitute for legal advice on specific facts and circumstances. BakerLaw LLP and/or the writer accepts no liability or responsibility for reliance on this article and recommends that you seek independent legal advice on your specific circumstances prior to taking any steps.