The Role of an Attorney

A Lasting Power of Attorney (LPA) is a legal document that allows you (the Donor) to appoint one or more trusted individuals to make decisions on your behalf (Attorneys). When choosing who should be your Attorney, it is important to remember that they should be trustworthy, reliable, and capable of making decisions in your best interests. Many people choose a partner, close family member, friend, or a professional they have confidence will act in accordance with their wishes, should they stand in their shoes.

Who can be an Attorney?

There are certain eligibility requirements that must be met when appointing an Attorney. An Attorney must be at least 18 years old and have mental capacity to make decisions for themselves. Further, a Property and Financial Affairs Attorney must not be bankrupt.

When does an Attorney’s role begin and end?

Before an Attorney can use the LPA, it must first be registered with the Office of the Public Guardian.

Following registration of a Health and Welfare LPA, an Attorney can only make decisions if the Donor has lost mental capacity to make decisions for themselves.

For a Property and Financial Affairs LPA, however, the Donor can choose whether the Attorney can begin acting as soon as the LPA has been registered or once the Donor has lost mental capacity. The Donor must consent to the Attorney acting on their behalf whilst they retain capacity.

An Attorney’s authority ends automatically once the Donor dies. At that point the Attorney no longer has any power to make decisions or manage the Donor’s affairs. Responsibility for dealing with the Donor’s Estate then passes to the Executors of the Will.

Whilst the Donor has the capacity to do so, they may also revoke an Attorney’s authority by signing a Deed of Revocation and sending it to the Office of the Public Guardian.

What can an Attorney do?

An Attorney’s role will vary depending on the type of LPA you have created.

1. Health and Welfare

Your Attorney can make decisions about your medical treatment and care, where you live, your daily routines, diet, personal care and life-sustaining treatment.

2. Property and Financial Affairs

Your Attorney can manage your financial matters such as paying bills and household expenses, managing bank accounts, buying or selling property, and dealing with your investments.

What about if there is more than one Attorney?

When appointing more than one Attorney, the Donor must decide whether they are to act jointly, jointly and severally, or jointly in some decisions and jointly and severally for others. If your Attorneys are appointed to act jointly and severally, this enables them to make decisions on their own or together, which can be practical where simple or urgent decisions are required.

If your Attorneys are appointed to act jointly, they must agree unanimously on every decision. If a decision cannot be made, the matter must be referred to the Court of Protection for a decision to be made. Where Attorneys are appointed jointly, if one of your Attorneys dies or loses capacity themselves, your LPA will stop working unless you have appointed a Replacement Attorney.

If your Attorneys are appointed jointly for some decisions and jointly and severally for others, you must make a list of the decisions your Attorneys should make jointly. If one of your Attorneys dies, any of the decisions you listed cannot be made jointly, and your LPA will stop working unless you have appointed a Replacement Attorney.

Replacement Attorneys and being removed as an Attorney

Replacement Attorneys can also be appointed, but they do not step in until an original Attorney dies, loses mental capacity, or resigns. It is important to know that the Court of Protection also has the power to remove an Attorney if they have concerns that they are not acting in the Donor’s best interest, failing to carry out their duties, or no longer have mental capacity.

What Ellis Jones can do for you

Ellis Jones can provide comprehensive assistance in creating and managing Lasting Powers of Attorney (LPAs), ensuring that clients receive expert guidance tailored to their specific needs. Our team of experienced lawyers can help you navigate the complexities of LPAs, from initial advice to ongoing management of your affairs if necessary.

When creating an LPA, we will ensure that the document is tailored to your circumstances and complies with all legal requirements under the Mental Capacity Act 2005. This includes advising on the choice of Attorneys, ensuring they are trustworthy, capable, and suitable for the role, and explaining the implications of appointing Attorneys to act jointly, jointly and severally, or in a combination of these roles. We will also guide you on including any restrictions or preferences in the LPA to reflect your wishes and protect your interests.

Our lawyers will ensure that the LPA is validly executed and registered with the Office of the Public Guardian, as registration is essential before the Attorney can act on your behalf. We will also provide advice on the modernisation of LPAs, ensuring you benefit from the latest developments in the law.

In addition to creating LPAs, Ellis Jones can assist with the ongoing management of your affairs. If you require professional Attorneys, we can act in this capacity, ensuring that decisions are made in your best interests and in compliance with the legal duties of an Attorney. This includes managing property and financial affairs, such as paying bills, managing investments, or selling property, as well as making decisions about health and welfare matters if you lose capacity.

Furthermore, we can provide support in monitoring the actions of your appointed Attorneys to ensure they fulfil their obligations and act in accordance with your wishes. If concerns arise about an Attorney’s conduct, we can advise on the steps to address these, including applications to the Court of Protection if necessary.

We are here to provide expert, compassionate, and practical support at every stage of the LPA process, giving you peace of mind that your affairs will be managed effectively and in accordance with your wishes.