I am an attorney – can I make gifts on behalf of a donor?
My widow mother has just been diagnosed with early-stage dementia and Ive been advised to organise A Lasting Power of Attorney for her Health & Welfare as well as her Financial Affairs. Should I do this jointly with my brother and sister or is it easier to grant the powers to one of us.
A Lasting Power of Attorney (LPA) in England and Wales is a legal document that can be used where a person no longer has mental capacity to make decisions for themselves. There are two types of LPA – one appoints attorneys to make decisions in respect of financial affairs such as managing bank accounts, paying bills and selling property. The other appoints attorneys to made decisions about health and welfare such a medical care, moving into a care home and decisions about end-of-life treatment.
Choosing an attorney or attorneys is a decision your Mother should make. Government guidance on making an LPA recommends that she should think about factors such as how well they look after their own affairs, such as finances; if they can be trusted to make decisions in their best interests; and how happy they will be to make decisions on her behalf. It is recommended that at least two attorneys are appointed so that the role, which can be burdensome, is shared and in case one of the attorneys is unable to act which if there was only one attorney, would render the LPA ineffective.
Attorneys can be appointed to act jointly meaning every decision needs to be made jointly and unanimously. This can be cumbersome. But the principal drawback is that if one of the attorneys dies or loses capacity themselves the LPA becomes null and void. Alternatively many people opt for the powers to apply jointly and severally in which case attorneys can make decisions together or just one of them can make a decision on their own. This mitigates the 'risk factors' because the LPA will continue to work if one of the attorneys is unable to act for some reason. This is the option most people choose.
It is also possible to appoint a reserve attorney who can act as a replacement when one of the original attorneys can no longer make decisions on behalf of the donor.
It is probably advisable for your Mother to appoint yourself and one of your siblings as her attorneys with the other being appointed as a replacement. However if she wants to be even handed she could appoint all three of you.
When executing the LPA a certificate provider will need to confirm, that despite her diagnosis, your mother has the capacity to make an LPA. She will need to understand information relevant to the decisions, retain this information, weigh up the pros and cons of her decision and communicate this. If she has lost capacity then an application will need to be made to the Court of Protection which can be a lengthy process so I suggest that you act without delay.
This article was originally published by FT.com on 25 May 2021 and in the newspaper on 30 May 2021.
Jemma’s practice involves supporting professional and lay deputies for individuals who do not have capacity to manage their property and financial affairs. This includes assisting them with complex applications to the Court of Protection for approval to purchase properties, statutory wills and making gifts. She also supports them with complying with their legal obligations as a Deputy including management of their finances, adaptations to properties, care planning and best interests decision making. She has a particular interest in cases where issues relating to health and welfare arise, including assisting individuals with making an application to the Court to become a health and welfare deputy.
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.
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