Our top tips for acting as an Attorney
Posted 13th November 2018
With over 850,000 people in the UK suffering with dementia (a statistic that is set to
rise to over 1 million by 2025, and 2 million by 2051), registering a Lasting Power of
Attorney should be an essential part of our estate planning.
What happens if I lose my capacity but have not completed a Lasting Power of Attorney?
Without a Lasting Power of Attorney in place the state may appoint a ‘Deputy’ to make decisions for you. This is likely to be somebody unknown to you and your family. If your family want to have this control, they may have to make an application to the Court of Protection to gain the power back to act on your behalf. This can be a lengthy process and has the potential to cost thousands.
We have put together some great tips to help you in your role as acting for an attorney.
Our top tips for acting as an attorney:
- Always act in the donors best interest – this may seem like an obvious one, but it is important to always keep the donor in mind when making decisions and take reasonable care when making all decisions relating to the donors welfare
- Be careful when gifting money – as an attorney, you are able to make certain gifts of money. Unless the donor added special instructions dictating otherwise, you can gift money to the donor’s friends and family (for example on events such as birthday and Christmas), donations to charities that the donor may have previously given to. For any other type of gift, you must apply to the Court of Protection. This would include gifts such as paying school or university fees, interest-free loans, or allowing somebody to live at the donor’s house without paying market rent (anything paid below the market rent counts as a gift).
It goes without saying that you must always make certain that the donor can afford to make a gift before releasing any money. There is a useful guide for more information on this:
- Keep all monies separate – ensure that you always keep monies separate when paying bills or making transactions and try to keep all receipts too
- Record all transactions - keeping a spreadsheet of accounts is very good practice
- Remain confidential – acting as an attorney is a very important role and it is crucial to keep all affairs private
- Pay attention to how the LPA was set up – If you are the sole attorney, this means that you make all of the decisions alone. If the Lasting Power of Attorney was set up with more than one attorney, it will either be structured as Jointly (all attorneys must agree before anything is done), or Jointly and Severally (this means that decisions can be made individually or with all attorneys)
If you are struggling with your role as an attorney you can contact the Office of the Public Guardian and it is also important to familiarise yourself with the Mental Capacity Act 2005 Code of Practice.
A Lasting Power of Attorney is a powerful legal document allowing an individual (the ‘Donor’) to appoint one or more people to act on their behalf should they lose their mental capacity or simply require some assistance from a loved one.
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