Legal Professional Privilege cannot be defeated by the FRC’s interpretation of its disclosure regime
You have been appointed as your loved one’s property and affairs attorney under a Lasting Power of Attorney (“LPA”) and this has been registered by the Office of the Public Guardian (“OPG”). The OPG has published new guidance which may be helpful. As an attorney, you must always act honestly and in the best interests of the person granting the power of attorney (the donor). This role can often be daunting.
It is helpful to know, for example, about the donor’s history of finances: the financial decisions which the donor has made, their pattern of expenditure, their support of third parties. Examples include:
You should ask the donor where they keep their financial information, such as information relating to their benefits, pension, tax correspondence and bills. It is also helpful to know where the donor keeps important documents, such as the deeds to their property, share certificates (if any), details of bank accounts, NS&I bonds, investments, details of financial advisors including accountants, the registered LPA and Will.
You must act in the donor’s best interests. This includes involving the donor to help them make their own decisions as far as possible. An attorney must not substitute the donor’s plan with their own just because they think the donor is making a bad decision.
Depending on the donor’s level of understanding, the attorney may want to communicate using different methods, such as using pictures, sign language or the donor’s native language.
You should register the original or certified copy of the LPA with the donor’s banks, utility companies and the Department of Work and Pensions so that they will discuss the donor’s accounts with you. You will need to provide them with ID to prove you are the attorney.
It is far easier to keep the donor’s finances separate from your own so keeping the donor’s existing bank account open is recommended. You should note the reasons for expenditure and keep receipts for the larger transactions. A spreadsheet is helpful for this purpose. It is also helpful to keep the donor’s bills in a file.
If you make gifts on the donor’s behalf, you must ensure that such gifts do not harm the donor’s care or quality of life. The gifts must be proportionate and affordable to the donor’s estate. Any substantial gifts will require permission from the Court.
You must not make any profit or benefit personally from acting as an attorney. As an attorney, you must be objective and always act in the donor’s best interests.
There may be circumstances when the donor lacks capacity to make a contribution to the decision making process. In such cases, it is recommended that you follow any LPA restrictions or conditions the donor implemented, follow the guidance in the LPA and discuss the possible options with the donor’s close relatives/friends to establish what the donor would have done if they had capacity. This is person specific and you should not make assumptions about what the donor would like based on their age, behaviour, condition or appearance.
The OPG has provided a helpful summary to remember before you take action:
Think – is this what the donor would want?
Check – can the donor be helped to make all or part of the decision?
Remember – every decision must be in the donor’s best interest.
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