Attorney's Duties & Responsibilities

An Attorney takes on a serious responsibility when agreeing to act under a Power of Attorney. Here are some of the most important points to consider when acting as an Attorney:

Mental Capacity Act

Powers of Attorney are governed by the Mental Capacity Act 2005 (MCA), regulations made under it and the MCA Code of Practice. Attorneys must have regard to these documents.

Power of Attorney document

An Attorney cannot make decisions, which have been limited or restricted within the Power of Attorney document, unless approval is sought from the Court of Protection.

Capacity of the Donor

In accordance with the principles of the MCA, an Attorney must:

assume that the Donor can make their own decisions unless it is established that they cannot do so.
help the Donor to make as many of their own decisions as they can. An Attorney must take all practical steps to help the Donor to make a decision and can only treat the Donor as unable to make a decision if the Attorney has not succeeded in helping the Donor make a decision through those steps.
not treat the Donor as unable to make a decision simply because they make an unwise decision.
act and make decisions in the Donor’s best interests when they are unable to make a decision.
before an Attorney makes a decision or acts for the Donor, they must consider whether they can make the decision or act in a way that is less restrictive of the Donor’s rights and freedom but still achieves the purpose.

Investments and Tax planning

When considering an investment, an Attorney must take such care and skill as is reasonable in all circumstances.

An Attorney should consider the standard investment criteria under the Trustee Act 2000, particularly the suitability of the type of investment and the desirability of investment diversification.

Advice should be taken from an appropriately qualified person, unless an Attorney believes that obtaining such advice would be inappropriate or unnecessary.

Although, an Attorney should manage the Donor’s estate to reduce the Donor’s tax liabilities, investing in Inheritance Tax saving schemes may not automatically be in the Donor’s best interest. An Attorney should consider the Donor’s wishes and beliefs prior to making a decision as to whether such investments would be suitable and in the best interest of the Donor.

Here to help

Our specialist teams can provide full service legal advice and assistance, providing practical and cost-effective solutions.

Make A Call Make An Enquiry

Conflict of interest

An Attorney must always act in the Donor’s best interest and if there is a conflict of interest between the Donor and the Attorney, the Attorney must not compromise their duty to act in the Donor’s best interest.

Attorney’s bankruptcy

An Attorney’s appointment under a Property and Financial Affairs Power of Attorney will be terminated if the Attorney is declared bankrupt.

Gifts & Loans

An Attorney’s authority to make gifts on behalf of the Donor is restricted by the legal limits, even if the Donor still has capacity and provides the Attorney with instructions to make a gift on their behalf.

A Court of Protection application will need to be sought if the Attorney wishes to make gifts outside of the legal limits.

Similarly, an authority from the Court of Protection is required if the Attorney wishes to make a loan from the Donor’s funds to themselves.

Sale of the Donor’s property to the Attorney

If an Attorney wishes to purchase the Donor’s property, even at the full asking price, the Attorney must make a Court of Protection application for the Court’s authority to purchase the Donor’s property.

Removing an Attorney

If the Donor has mental capacity, they can remove an Attorney from their Lasting Power of Attorney.

If an Attorney fails to act in accordance with their duties and responsibilities, the Court can strip the Attorney of their Attorneyship. Some of the Attorney’s action can also lead to them committing a criminal offence.

If an Attorney is concerned about their Co-Attorney’s actions, they can report their Co-Attorney to the Office of the Public Guardian.

The Donor’s Will

Subject to no contrary instruction in the Property and Financial Affairs Power of Attorney, an Attorney is usually entitled to see a copy of the Donor’s Will. The Will forms part of the Donor’s property and financial affairs, which the Attorney is authorised to manage.

If the Donor does not have a Will in place, the Attorney should consider making a Statutory Will application.

Specialist Court of Protection Solicitors

There are other duties and responsibilities that Attorneys must comply with. Our experienced team can provide advice to Attorneys as to their obligations, duties and the scope of their authority or, assist them with the Court of Protection applications, as required.

Attorney's duties & responsibilities FAQs

What is power of attorney?

A Power of Attorney is a is a legal document that allows you to give another person, known as an Attorney, the authority to make decisions on your behalf. This can include decisions related to financial matters, medical care or other personal affairs.

Our experienced Lawyers can help and guide you through the process.

What is the mental capacity act?

The Mental Capacity Act 2005 (MCA) was enacted to protect and empower individuals who may lack the mental capacity to make decisions for themselves in specific areas of their lives.

Who can assess mental capacity?

Mental capacity is typically assessed by trained professionals such as medical practitioners or social care professionals who can evaluate an individual’s ability to understand and make decisions. In legal situations, a suitable qualified lawyer may be involved in determining a person’s mental capacity.

What is capacity and how is it assessed?

Mental capacity refers to a person’s ability to make decisions for themselves.

The specific criteria for assessing mental capacity may depend on the jurisdiction and the context (medical, legal, or social). The assessment typically focuses on whether the individual can understand relevant information, retain it, use or weigh the information, and communicate their decisions.

What can I do if someone without capacity is being exploited financially?

If you know someone who appears to be a victim of financial exploitation you should take action immediately.

The are several avenues to pursue to address the issue.

We recommend you seek guidance from our highly experienced Lawyers in the first instance.

Can attorneys or deputies be removed if they are not acting in the best interests of a person without capacity?

Attorneys or Deputies can be removed if they are found not to be acting in the best interests of a person without capacity or if
they are failing to fulfil their duties and obligations.

If you are appointed as an Attorney or a Deputy, we strongly advise you to contact our experts to ensure that you understand your duties.

Do you need a lawyer to get a power of attorney?

Although it is not necessary to instruct a Lawyer to get a Power of Attorney (POA), seeking help from a suitably qualified and experienced Lawyer can provide several important benefits, especially if you want to ensure that the document is legally valid, clear, and tailored to your specific needs.

Knowing that a legal professional has prepared your POA can give you peace of mind, ensuring that your wishes will be respected and that your Attorney will have the authority to act if necessary.

Many of our experts are fully accredited members of the Lifetime Lawyers (formerly known as Solicitors for the Elderly) which is a national association of independent Lawyers who specialise in older and vulnerable client law.