You’ve been appointed as an attorney under a Lasting Power of Attorney (LPA).
The person who made the Lasting Power of Attorney (the ‘donor’) trusts you to make decisions for them if they lose mental capacity. If they want, you can help them now.
‘Mental Capacity’ is the ability to make a specific decision at the time is needs to be made.
This Lasting Power of Attorney covers the donor’s property and money matters, such as:
- using their bank & building society, current & savings accounts
- claiming, receiving and using their benefits, pensions and allowances
- paying their household, care and other bills
- buying or selling their home
- saving or making and selling investments.
The law says you must always act honestly and in the donor’s best interests.
What to do now?
Talk to the donor about how they look after their finances. For example, do they:
- give birthday gifts to children or other friends and family (how much)?
- like spending on clothes, music or trips?
- donate to particular charities (how much)?
- want to sell or rent out their home if they move into a care home?
- prefer to keep a minimum bank balance?
Ask the donor where they keep their financial information, such as:
- benefits, pensions and tax letters
- bills and bank or credit card statements
- the deeds of any property they own
- the Lasting Power of Attorney document.
Get Certified copies of the Lasting Power of Attorney document:
- if the donor has capacity, they can certify copies of the LPA
- a solicitor or notary will make them for a fee.
Helping the donor
As an attorney, you must help the donor to reach their own decisions, if they can. You cannot decide for the donor just because you think their decisions are odd or unwise.
The law says that you must assume that someone can make decisions, unless it is shown that they cannot.
Help the donor to make decisions
Can they make decisions?
Explain in different ways. Would using pictures, sign language or their native language help?
If there are times when the donor cannot decide and the decision is not urgent, wait.
A lack of Mental Capacity is when a mind or brain problem stops a person making a specific decision when they need to.
If the donor doesn’t have mental capacity:
- follow any Lasting Power of Attorney restrictions or conditions
- try to follow guidance in the document
- ask others what the donor would do
- do not make assumptions based on the donor’s age, behaviour, condition or appearance – think about what they as an individual would want.
Avoid decisions that restrict the donor’s freedom.
Look for an option with less of an impact
Make decisions in the donor’s best interest.
Each decision must be the best choice for the donor, not just one that suits other people.
Keep accounts by writing down income and bigger outgoings and gifts. Keep bills.
It’s easier to keep the donor’s and your money and property separate, unless you already have joint accounts or own a home together. If the donor owns a property, check that it’s registered name with HM Land Registry, and, if it’s not, register it. Also, join the Property Alert Service.
Dealing with banks and other companies
Banks, Building Societies and Utility companies need proof that you are an attorney. You should also tell the Department of Work and Pensions.
You may have to show them:
- the original Lasting Power of Attorney document or a certified copy, not a photocopy
- proof of who you are and where you live (such as a gas or electricity bill and passport or driving licence)
- Speak to the manager or head office if you are having problems.
Gifts can only be made if they are in the donor’s best interests. Spending must not harm the donor’s care or quality of life and all gifts must be affordable. You can still give charitable donations or family birthday presents, but you cannot spend a lot more or differently from the donor. You cannot make profits or benefit personally from acting for the donor – it’s against the law.
If there are other attorneys, the Lasting Power of Attorney document will say how you act together:
- Jointly + Severally – you can decide with other attorneys, or by yourself
- Jointly – all attorneys must agree every decision
- Jointly for some & Jointly + Severally for others – you must agree decisions that are set out in the Lasting Power of Attorney document with all the attorneys; you can make others alone.
If you have to make a decision Jointly and you do not all agree, it cannot be made.
If you and other attorneys cannot agree, ask family and friends what the donor would want and what’s in their best interests.
You can contact the Office of the Public Guardian for help or advice on 0300 456 0300.
Before You Act:
- THINK – is this what the donor would want?
- CHECK – can the donor be helped to make all or part of the decision?
- REMEMBER – every decision must be in the donor’s best interests.