It is widely reported that making a Lasting Power of Attorney (LPA) is part of sensible future planning. Far less attention, however, is given to what happens next: the responsibilities of the person appointed as attorney.
Many attorneys take on the role out of love or a sense of duty, not realising that acting under an LPA is not a casual arrangement. It is a legal role with significant responsibilities, governed by the Mental Capacity Act 2005 (MCA) and its Code of Practice. Attorneys often find themselves navigating complex decisions with little practical guidance.
An LPA gives wide authority, but it is not unlimited. Attorneys must understand not only what they can do, but also what they cannot do.
Gifts
Attorneys cannot make gifts freely, even if they believe it is what the donor would have wanted. The law restricts gifts to limited circumstances, such as reasonable birthday or seasonal gifts to family members. Larger gifts, including inheritance tax planning or helping a child on to the property ladder, will require the approval of the Court of Protection.
Core duties
The MCA Code of Practice sets out an attorney’s core duties. Central to these is the requirement to act in the donor’s best interests. This does not mean substituting the attorney’s own views, nor automatically doing what is easiest or most convenient. Attorneys must consider the donor’s past and present wishes, beliefs and values, and consult with relevant family members or professionals where appropriate.
Attorneys must also follow the five statutory principles of the MCA, including supporting the donor to make their own decisions wherever possible and assessing capacity for each decision, rather than assuming incapacity globally.
Financial transparency
Attorneys must keep accurate records and accounts, separate the donor’s finances from their own, and be able to justify decisions if questioned by the Office of the Public Guardian. This can feel onerous, but it is vital protection for both the donor and the attorney.
Disagreements
Where there is more than one attorney, or where family members hold differing views, decisions may be challenged and past actions scrutinised. Even well intentioned decisions can be questioned months or years later. Clear reasoning, lawful decision making and proper records are essential safeguards.
The difficulty is that many attorneys only realise the weight of their responsibilities once they are already acting, often at a stressful time. Without proper advice, mistakes can be made.
Support when you need it
Taking on the role of attorney is an act of trust and care, but it is also a legal commitment. If you are acting as an attorney and are unsure about your powers or responsibilities, or if you are considering putting an LPA in place and want it prepared correctly from the outset, the Tax, Trusts and Succession Team at BPE Solicitors can provide clear, practical advice, helping to protect both the donor and those acting on their behalf.
If you're looking for guidance or legal support regarding the subject of this article, please don't hesitate to contact our Tax, Trusts and Success team by clicking here.
