As discussed in our previous blogs, a donor must have the mental capacity to make a Lasting Power of Attorney (“LPA”) for property and affairs and health and care. The completed LPA is then sent to the Office of the Public Guardian (the “OPG”) for registration. Each page of the registered LPA will be stamped with ‘VALIDATED-OPG’.
It can often be daunting when one becomes an attorney. Here is a guide which should help you as an attorney to move forward with the donor’s affairs.
Once the LPA is registered, you should carefully read the LPA for any instructions, preferences or conditions the donor included and to see what power you have. For example, you might have been appointed as a joint and several attorney or you could have been instructed to make certain decisions by yourself or jointly with another attorney.
Property & Affairs LPA
- You should speak to the donor about any specific wishes they may have in relation to their affairs, such as whether they would want to stay in their own home if they need care in the future. Find out where the donor keeps their financial information, such as statements, tax correspondence, share certificates, property deeds, details of any advisors they have. Check if they have a Will in place.
- You will need to register the original or certified copy of the LPA with the donor’s banks, utility companies, the Department of Work and Pensions and any other financial institutions. You will need to provide your ID to prove you are the attorney.
- Check if the donor is entitled to any benefits and if so, apply for these, check the donor’s property(ies) and any contents are insured and if required make sure there is a current TV licence.
- It is best practice to keep your funds separate from the donor’s funds so keep the donor’s bank accounts open. The LPA will be registered against these accounts so you will be able to access the funds to make payments on their behalf.
- Keep a record of the donor’s income and expenditure. For example, do any large sums need to be spent on purchasing equipment for the donor or adapting their home? Keep a note of this and it’s a good idea to keep receipts for any substantial purchases. If you are selling investments to raise money for the donor, keep a note of the advice you receive from professionals about such decisions.
- A lay attorney cannot charge for their time acting as an attorney. You cannot make any profit or benefit personally from acting as an attorney. If a conflict of interest arises, you may need to consider whether or not you can continue acting as an attorney.
- You can claim expenses for expenditure incurred in your role as attorney, such as travel costs, stationery, postage.
- You can seek professional advice in relation to the donor’s affairs and the cost of this can be properly paid from the donor’s estate. For example, you might need to instruct an accountant to prepare the donor’s returns.
- Find out if the donor made any regular gifts to charities and/or family members when they had capacity. You can make gifts to the donor’s friends / relatives on customary occasions, such as birthdays, anniversaries, religious events, weddings. Any gifts made must be proportionate to the donor’s estate and must not harm the donor’s care or quality of life. Any substantial gifts will require permission from the Court and this will be discussed in the next blog in the capacity series.
Health & Care LPA
- Check the LPA for instructions about whether or not the donor has authorised you to refuse or consent to life sustaining treatment. If the donor has capacity, you should speak to them about their treatment wishes.
- Register the original or certified LPA to the donor’s doctor / care staff.
- As a health and care attorney, you will be able make decisions on the donor’s behalf about their daily routine, medical care and residence. Extra funds might be required to improve the donor’s quality of life and you can ask for the required funds from the property and affairs attorney (if there is one).
- An application to the Court of Protection might be required if a medical decision needs to be made but there is disagreement about this from the donor’s medical staff and family or if the LPA provides different instructions. Applications such as these tend to be for one-off decisions.
As a financial or health attorney, any decisions you make must be in the donor’s best interests. You must not make assumptions about what the donor may want to happen with their affairs based on their age, behaviour, condition or appearance – it is always best practise to speak to the donor as far as this is possible to understand their wishes and feelings. If the donor lacks capacity to assist with decisions, then look to the LPA for any instructions or preferences the donor included and also speak about the possible options with the donor’s close relatives or friends to establish what they would have done if the donor had capacity.
As an attorney, you should remember this before making decisions on behalf of the donor:-
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.
If you have any concerns about capacity, or if you are contemplating making a LPA for the first time, please get in touch with our team for more information.
About the author
Sameena Munir is a solicitor in the Private Client Department. Sameena has a Court of Protection focus, supporting property and financial affairs deputies. She works closely with clients who lack capacity, with a particular specialism of cerebral palsy and severe brain injury cases. She prepares statutory will and gift applications to the Court, and creates personal injury trusts. She also advises on lasting powers of attorney and probate matters.