Guidance for Attorneys: Your LPA Responsibilities

Guidance for Attorneys: Your Responsibilities Within a Lasting Power of Attorney

LPA

Lasting Powers of Attorney (LPAs) are serious legal documents. It’s important that you understand what these documents mean for you before you agree to act under them. To help, we’ve written this guide to help you find out what kinds of responsibilities you may have as an attorney.

Remember that the exact responsibilities you’ll have will depend on the specific LPA that’s drawn up. You should seek professional legal advice to ensure you understand your exact situation. For more information about LPAs, read our article on what LPAs are and who needs them.

What are your responsibilities as an attorney under an LPA?

An LPA is an agreement between a “donor”, who is the person you’ll make decisions for, and the “attorneys”, who make the decisions. There may be several attorneys, and they may have to agree either unanimously on decisions or be able to make them individually.

If you agree to be an attorney under a Lasting Power of Attorney, you’ll have a number of responsibilities. These include:

  • Acting in the donor’s best interests. This applies to any decision you make for the donor under an LPA.
  • Ensuring that you act within the terms of the LPA itself. This means following restrictions and complying with any specific details.
  • Helping the donor make their own decisions. The expectation of an LPA is that you will not take control unless you have to.

These responsibilities apply to every LPA. However, you should remember that an LPA may change and develop over time. For example, sometimes a donor may only temporarily lack capacity to make decisions. In this case, you may need to make some decisions and then return to helping the donor make them themselves.

What kinds of decisions might you have to make?

The exact decisions you may have to make as an attorney will vary depending on the type of LPA and the specific circumstances of the situation. There are two main types of LPAs:

LPAs for Property and Financial Affairs

Under this type of LPAs, attorneys will usually be making decisions on financial matters, covering things like:

  • Mortgages, buying and selling properties
  • Investments and financial affairs
  • Bill payments
  • Property repairs
  • Tax commitments

LPAs for Health and Welfare

If you’re an attorney under a Health and Welfare LPA, you’ll have to make decisions on things like the daily routine, accommodation or care of the donor. This may include things like:

  • Where the donor lives
  • Their medical care, including potentially adding special permission for making decisions on life saving treatments
  • The donor’s activities and the food they eat

These two types of LPAs may have different attorneys, so if you’re appointed under one type and an LPA of the other type is also in force, you’ll need to consult with the other attorney on decisions that fall under their remit. For example, if you’re under a Health and Welfare LPA and you need to make changes to care plans that cost money, you’ll have to discuss this with an attorney for the Property and Financial Affairs LPA.

How you should make these decisions

Any decision you make in your position as an attorney under an LPA must be made in the donor’s best interests. This means you need to think carefully about each decision and consider things like the donor’s past wishes.

You should also try and help the donor to make decisions on their own, for example by explaining things simply and giving them time to think. It’s best to start from the assumption that the donor can make each decision, rather than taking control.

You should try to avoid making decisions that restrict the donor’s human or civil rights as much as is possible. If you do have to make a decision like this, consider if you can do so in a way that is less restrictive but achieves the same purpose.

You can take advice on decisions if you feel that you cannot make them yourself. However, you usually can’t delegate responsibility to someone else – you need to make the decision yourself. Some LPAs may specifically offer you this ability, for example if there is a large investment that needs to be managed.

The specific legal principles you must follow when making these decisions

You must follow the principles set out in the Mental Capacity Act 2005 Code of Practice. This document establishes many of the points already discussed in this article but also covers lots more detail. You should ensure you’re familiar with it before undertaking your duties as an attorney.

What to do if you need help

LPA documents can be complicated things to manage, and they often come at difficult times in life. To help you, Face to Face Estate Planning can offer advice on setting up LPAs and help attorneys understand their responsibilities.

We also offer a professional attorney service. If you’d prefer to have a professional attorney undertake this legal duty, we can act as your attorney sensitively and with full understanding of the role and its responsibilities. If you’d like to chat with us about how we can help with your LPA, get in touch here.