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Acting as an Attorney - Lester Aldridge advises

Acting as an Attorney?

What you need to consider when acting as an Attorney under a Lasting Power of Attorney: read this important advice from Lester Aldridge.

Ed note: This month's Life Matters article from Lester Aldridge is on the very important subject of the responsibilities of acting as an Attorney under a Power of Attorney (one of which we should all have in place). This could be extremely useful to bookmark for when you need it.

Do also look back at last month's article about Buying a Boat which is highly pertinent as the boating season gets underway in style and great weather: click here to read

Acting as an Attorney in a Power of Attorney

What you need to consider when acting as an Attorney under a Lasting Power of Attorney

You have taken on a serious responsibility in agreeing to act as an Attorney under a Lasting Power of Attorney (LPA). We often find that unfortunately, in the majority of cases, Attorneys do not fully understand their duties and responsibilities, which can lead to problems. Some of the Attorney’s actions can lead to the Attorney being stripped of their Attorneyship and may even result in an Attorney also committing a criminal office.

Here are some of the most important points for you to consider if you are acting as an Attorney under a Lasting Power of Attorney.

Mental Capacity Act – statutory principles

You should be careful to ensure that your actions and decisions are compliant with the law. You must understand your important duties and responsibilities, which are set out in the Mental Capacity Act 2005.

Instructions within the Lasting Power of Attorney document

You must follow any restrictions or conditions set out in the LPA. You cannot make decisions, which have been limited or restricted within the LPA document, unless the approval is sought from the Court of Protection.

Conflict of interest

You have an obligation to always act in the best interest of the Donor. If there is a conflict of interest between the Donor and yourself, you must not compromise your duty to act in the Donor’s best interest.

Attorney’s own bankruptcy

If you are declared bankrupt, your appointment as an Attorney under the Property & Financial Affairs Lasting Power of Attorney is terminated.

Capacity of the Donor

You are required to support the Donor to make decisions and you will need to understand how to ascertain capacity in accordance with the principles of law.

Gifts

Your authority to make gifts is restricted by the legal limits, even if the Donor still has capacity and provides you with instructions to make a gift on their behalf.  If you wish to make gifts outside of the legal limits, you should make an application to the Court of Protection for approval of gifts prior to taking any action.

Sale of property to the Attorney

If you wish to purchase the Donor’s property, even at the full market rate, you would need to make a Court of Protection application for authority to purchase the Donor’s property.

Charging the Donor for the Attorney’s time

You can usually only recover out of pocket expenses, unless there is a clear authority for you to charge for your time and services. If there is no such authority and you charge the Donor for your time, you would be in breach of your duty to act in the Donor’s best interest.

Loans

You must not profit from your position. If you wish to make a loan to yourself of the Donor’s money, you will need to seek an authority from the Court of Protection.

The Donor’s Will

If you believe that the Donor does not have a valid Will in place or, the Donor’s Will is out of date, you should apply to the Court of Protection for a Will to be made.

Business LPA

If the Donor runs their own business, you can only continue the operation of the Donor’s business, if the Donor prepared a valid Business Lasting Power of Attorney.

Health & Welfare LPA

If the Donor does not have a valid Lasting Power of Attorney for Health & Welfare, you cannot make decisions affecting Donor’s personal welfare, decisions regarding their medical treatment and healthcare. You can apply to the Court of Protection to be appointed a Health & Welfare Deputy.

Enduring Powers of Attorney (EPAs)

The law changed significantly in relation to powers of Attorney in 2007 when EPAs were replaced by LPAs. Whilst EPAs may remain effective, the document is limited to financial affairs only and must be registered with the Office of the Public Guardian, if you believe that the Donor starts to lose or has lost their mental capacity.

Acting as an Attorney in a Power of AttorneyOur experienced team at Lester Aldridge can provide you with advice as to your obligations, duties and the scope of your authority. Our solicitors can also assist you with applications for authority to the Court of Protection.

If you feel that you could benefit from any assistance, then please get in touch with us at This email address is being protected from spambots. You need JavaScript enabled to view it. or call on 01202 702612.

This article was written by Magdalena Lipinska, Solicitor, pictured above. 

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Lester Aldridge Solicitors are based in London, Southampton and Bournemouth - where the office covering the New Forest is situated conveniently close to the main Bournemouth train station. Their specialist teams in the various fields of law will be happy to advise and assist you, starting with a completely free initial consultation during which you can decide whether you feel able to trust them with your confidential information. Consultations are also available via virtual meetings : advice is available through phone, email, Skype and Zoom.

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Life Matters: Lester Aldridge Solicitors on a wide range of legal matters

Life Matters is a regular monthly feature on Lymington.com, which covers a wide range of legal subjects and is always written by one of the Lester Aldridge team. You can see a list of all published articles by clicking to the Lester Aldridge Solicitors webpage on Lymington.com here.

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