A guide to property and financial affairs Lasting Powers of Attorney

General and specific powers of attorney come in different shapes and sizes. This article focuses on lasting powers of attorney relevant to a person’s property and financial affairs. It is important to know that it is possible to make a separate Health and Welfare Power of Attorney. The two documents, although often made at the same time, are separate.

What is a property and affairs lasting power of attorney (LPA)?

It is a legal document that allows a person, known as the ‘donor’ to appoint one or more people to act as their attorney(s) to help the donor make decisions on the donor’s behalf.

To make a valid LPA, the donor must be over 18 and have mental capacity.

In making an LPA for property and affairs, the donor is giving their attorney the power to step in to make decisions about their property and affairs including, for example, the donor’s bank accounts, their bills, collecting benefits and pension payments and selling property.

When can it be used by an attorney?

An LPA cannot be used by an attorney until it has been registered with the Office of the Public Guardian (OPG).

Contrary perhaps to popular belief, an attorney can begin acting under the LPA upon registration irrespective of whether the donor retains mental capacity. However, a donor may, when making their LPA, stipulate within the document that their attorney is not authorised to act until such time as capacity is lost.

What is an attorney required to do?

The duties and responsibilities of an attorney are weighty and are set out in the Mental Capacity Act 2005. An attorney must follow certain principles such as:

1. They must assume that the donor has capacity unless it is established otherwise.
2. They must take all practicable steps to help the donor make a decision on a certain matter for themselves.
3. They must recognise that an unwise decision made by the donor does not, of itself, establish a lack of capacity on the part of the donor.

An attorney must act in the donor’s best interests at all times.

Decision making

When making decisions in relation to a donor’s affairs, they:

1. Must not make a decision based on the donor’s age, appearance, conditions or behaviour:
2. Must take account of all the relevant circumstances;
3. Must give thought to whether the donor might have capacity to make a particular decision in the future and if so, consider deferring the decision if appropriate;
4. Must facilitate and encourage the donor’s participation in the process as much as possible;
5. Must give weight to the donor’s past and present wishes, beliefs and values; and
6. Must take account of the views of any person the donor named as a person to be consulted on certain matters.

Acting with reasonable skill and care

An attorney must act with reasonable skill and care when dealing with the donor’s affairs. Where the attorney is a professional, they will be held to a high standard in this regard.

Fiduciary duty

An attorney is subject to a fiduciary duty and must not take advantage of their position as attorney and should never create a situation in which their own personal interests conflict with their duties as an attorney.

Keep accounts

An attorney is required to keep accounts of the actions they take under the LPA on behalf of the donor and should always keep a donor’s assets separately to their own. The duty to keep an account may seem onerous but it is a step that is as much for an attorney’s protection as for the protection of the donor.

Gifts

Gifts made by an attorney from the donor’s assets clearly have the potential to give rise to complaints of LPA misuse. The rules about gifting are relatively straightforward.

It is permissible for an attorney to make gifts on the donor’s behalf to the donor’s friends and family members on birthdays and other customary occasions. It is also possible to make gifts to charity.

Tips

1. An attorney should refer to the LPA itself to check if the donor left any specific instruction on the topic of gifting
2. Where the donor lacks capacity, the attorney should consider if the donor would have wanted the proposed gift to be made if they retained capacity
3. An attorney should consider if the value of the proposed gift is proportionate to the donor’s assets

Importantly, there is no presumption that a donor would be in favour of making tax efficient gifts.
Large gifts will require the prior approval of the Court of Protection. If in any doubt as an attorney, you should seek advice before making any gifts.

What to do if there are concerns that an attorney is abusing their position

Any concerns that an attorney is abusing their position should be reported to the OPG. Official guidance in this regard appears can be found on the dedicated Government webpage: Report a concern about an attorney, deputy or guardian.

The OPG will decide how to deal with reported concerns on a case by case basis. Complaints will commonly be about excessive gifting, an attorney paying themselves to carry out the role from the donor’s assets and/or sales of property to friends or family member for less than market value.

The OPG may carry out an investigation which could include sending an investigator to meet with the attorney and scrutinise their papers and accounts. An investigation could extend to a multi-agency effort involving social services and the police which could result in the matter being referred to court.

Sanctions for breach of duty depend on the extent and seriousness of the breach. If the breach occurred as a result of ignorance rather than a committed intent, it may be that an attorney is given additional guidance on their role and subjected to additional scrutiny. In the case of an intent to financially abuse the donor, an attorney can be removed, ordered to repay funds to the donor and in the worst case scenario, prosecuted in the criminal courts and fined or imprisoned.

Deputyship orders

As outlined above, an LPA can only be created while a donor retains capacity. Anyone wishing to deal with the affairs of a person who has lost capacity, a ‘protected person’, will need to apply to the Court of Protection for a deputyship order.

Such applications take time and can be costly with the protected person’s affairs potentially being in limbo prior to the making of any order.

Tip: these are good reasons for making an LPA in advance of losing capacity, even for a young person as none of us can predict when a life changing event might occur.

Attorney v deputyship

1. An LPA can be used prior to capacity being lost. A deputyship order is only available where capacity is lost.
2. In general terms, an attorney can deal with a donor’s property and affairs unless restricted by the donor in the LPA document. Conversely, a deputy will only be able to take steps that have been expressly permitted by the court order. Where the order does not include a certain activity, a further application to vary the order will be required.
3. Neither an attorney nor a deputy can make a will on behalf of a donor. Where the donor retains the necessary capacity, they can make a will for themselves. Otherwise, a separate application for a statutory will shall be required.
4. Making and registering an LPA can be quite a straightforward process but a donor should consider taking advice when doing so to avoid future pitfalls. A deputyship application can take a long time to reach a conclusion and be a costly process.