What are the powers, duties and responsibilities of an Attorney?

The Attorney’s powers are set out in the Lasting Power of Attorney (LPA). Their duties and responsibilities include to:

• Always act in the best interest of the Donor and consider their needs and wishes as far as possible.
• Not take advantage of the Donor’s position to gain any benefit themselves.
• Keep the Donor’s money and property separate from their own and other people’s.
• Consider the Mental Capacity Act and the supporting Code of Practice when acting.

What should the Attorney do with the LPA document?

The Attorney may wish to provide a copy of the LPA to relevant people and organisations to prove they have authority to make certain decisions on behalf of the person who lacks capacity. This could be the Donor’s bank or GP for example. They will then know that they can speak to the Attorney in the future.

Should the Attorney keep accounts of their dealings?

Yes, the Attorney has a duty to keep accurate accounts of their dealings for the Donor. They should have a list of the Donor’s bank accounts and other investments, as well as proper records of all of the Donor’s income and expenditure. This includes receipts, bank statements etc. The Donor’s money and assets should remain in the Donor’s name.

The Court can direct that the Attorney produce accounts at any time. If satisfactory accounts are not produced, then the LPA may be cancelled.

After the Donor’s death the Attorney may be required to account to the personal representatives of the Donor’s estate in relation to their dealings.

Can the Attorney sell the Donor’s property?

All actions taken on behalf of the Donor must be in the Donor’s best interests. If the Attorney believes that selling the property is in the Donor’s best interests (e.g. if they need to fund care fees) and the Donor is the sole owner of the property and the LPA allows it, then the Attorney may decide to sell the property. 

The Attorney does not need approval from the Court or the Office of the Public Guardian (OPG) to sell the Donor’s property. However, they must apply to the Court for permission if for any reason the sale is below market value, if the Attorney wants to buy the property or if the Attorney wants to give the property to someone else.

If the Attorney does not seek the Court’s approval in these circumstances then the sale may be challenged. These safeguarding measures are all designed to protect the Donor. 

If the Donor has a registered Personal Welfare LPA, the Attorney may need to discuss matters about the sale of the Donor’s property with any Attorney(s) appointed to make decisions about where the Donor lives.

Can the Attorney make gifts of the Donor’s Property?

The Attorney has limited powers to use the Donor’s assets to make gifts to themselves and others. Seasonal gifts can be made however, for example at Christmas or to mark other religious festivals or occasions such as anniversaries, births or marriage to people who are related to or connected with the Donor.

The Attorney can also donate to any charity the Donor supported or might have been expected to support. The value of any gift must be reasonable and proportionate in relation to the value of the Donor’s estate.

If larger gifts of money or property are to be made, for example as part of planning for Inheritance Tax, the Attorney must apply to the Court.

If a gift larger than the limits set is made without permission from the Court, it may have to be paid back.

Can the Attorney be remunerated for time and expenses?

A Professional Attorney such as a solicitor or accountant may charge for their services if the LPA provides for this. An Attorney(s) is not normally paid for their work but can recover reasonable expenses such as postage, stationary and the cost of phone calls from the Donor’s estate.

What is considered to be a reasonable expense will vary according to the circumstances of each case. It depends on what the Attorney is required to do and also the value of the estate of the person who lacks capacity.

The OPG can investigate complaints that an Attorney is claiming excessive expenses. If expenses are considered unreasonable, they may have to be repaid and, in extreme cases, the OPG may apply to the Court to cancel the Attorney’s appointment.

Can the Attorney retire from their duties?

Yes, the Attorney can cease to act in this role any time they wish. This is known as “disclaiming the power” and is done by signing a Deed of Disclaimer, although a formal deed is not a legal requirement. If the LPA is not registered the Donor should be notified of the resignation.

If the retiring Attorney is the only Attorney of a registered or unregistered LPA and believes the Donor needs to have a Deputy appointed for them, they should try to find someone suitable to make an application to the Court to make decisions on the Donors behalf.

If the Attorney is appointed jointly with another Attorney (i.e. they must always act together) and one of them retires from the role, then the LPA can no longer be used.

If the Attorneys are appointed jointly and severally (i.e. can act independently of each other or together) and one of them wishes to retire, the remaining Attorney(s) can continue to act under the LPA.

The OPG should always be advised of any changes.

How does the Office of the Public Guardian work with the Attorney?

The OPG does not supervise the Attorney(s) or tell them how they should manage the Donor’s affairs; however, they will investigate complaints about the Attorney(s) where necessary.

If the Attorney(s) needs advice on practical, financial or legal matters, they should seek help from solicitors or other professional advisers. The OPG can only provide general guidance, not legal advice or services.