The Responsibilities of an Attorney Under a Lasting Power of Attorney in England and Wales

A Lasting Power of Attorney (LPA) is a powerful legal document that allows individuals to appoint someone they trust to make decisions on their behalf when they are unable to do so. If you’ve been appointed as an attorney under an LPA in England and Wales, it’s essential to understand your responsibilities and duties. In this blog, we’ll explore the key responsibilities and obligations of an attorney.

  1. Acting in the Donor’s Best Interests:

The fundamental duty of an attorney is to act in the best interests of the donor, the person who appointed them. This involves making decisions that promote the donor’s welfare and respecting their known wishes and preferences.

  1. Abiding by the LPA:

An attorney must adhere to the terms and conditions set out in the LPA. This includes understanding the scope of authority granted by the donor, as it can cover health and welfare decisions or property and financial matters, or both.

  1. Avoiding Conflicts of Interest:

Attorneys must avoid any conflicts of interest and not make decisions that benefit themselves or any third party unless explicitly authorized by the LPA or permitted by the Court of Protection.

  1. Acting Diligently and Competently:

Attorneys must act diligently and competently when making decisions on behalf of the donor. This includes staying informed about the donor’s preferences, keeping accurate records, and seeking professional advice when necessary.

  1. Maintaining the Donor’s Lifestyle and Values:

Attorneys should consider the donor’s lifestyle and values when making decisions. They should ensure the donor’s wishes, including cultural, religious, and personal preferences, are respected.

  1. Keeping Finances Separate:

If appointed as a property and financial affairs attorney, you must keep the donor’s finances separate from your own and manage them prudently. Detailed records should be maintained.

  1. Keeping Beneficiaries Informed:

If the donor has named beneficiaries in their LPA, the attorney should keep them informed about decisions that may affect their interests.

  1. Consent and Capacity:

Before making any decisions on the donor’s behalf, attorneys must be satisfied that the donor lacks the capacity to make the specific decision at the time it needs to be made. Attorneys should always seek to obtain the donor’s consent whenever possible. 

  1. Regularly Reviewing the LPA:

Attorneys should regularly review the LPA and be aware of any changes in the donor’s circumstances or preferences. The LPA may be revoked or amended by the donor if they still have capacity.

  1. Reporting to the Office of the Public Guardian:

Property and financial affairs attorneys must submit annual financial reports to the Office of the Public Guardian, outlining how they have managed the donor’s finances.

  1. Seeking Professional Advice:

When facing complex or unfamiliar decisions, attorneys should seek professional advice, such as legal counsel or financial guidance.

  1. Being Prepared for Scrutiny:

Attorneys should be prepared for potential scrutiny of their decisions. Family members, beneficiaries, or the Court of Protection may challenge or review decisions if they believe the attorney is not acting in the donor’s best interests.

In conclusion, serving as an attorney under a Lasting Power of Attorney in England and Wales is a significant responsibility. It is a role that requires careful consideration, ethical decision-making, and a commitment to acting in the best interests of the donor. Understanding the responsibilities and obligations outlined in the LPA is essential for fulfilling this role effectively and with the utmost integrity. If you have been appointed as an attorney, you may also seek legal advice or guidance to ensure you fully comprehend your duties and can navigate your responsibilities successfully.

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