Everlasting Actual Property and Finance Power of Attorney – A Information for Legal professionals
A permanent power of attorney (LPA) gives one person or persons (called a solicitor) the authority to act on behalf of another person (called a donor) when the donor is unable to do so. This authority persists even if the donor loses the mental ability to make decisions.
This LPA for financial decisions relates to the donor’s property and financial affairs. The donor can also have a different type of LPA for health and care decisions.
YOUR APPOINTMENT AS A LAWYER
An attorney can be anyone whom the donor trusts to act in that capacity. You do not need any special qualifications, but you must be over 18 years of age and financially liquid. It is important that you feel able to manage the donor’s affairs indefinitely when the donor cannot do it himself. This can take a long time depending on how complicated the donor’s financial affairs are.
The LPA must be registered before you can use it.
If you are being appointed alongside someone else, you should review which of these three ways you have been appointed:
• • Together. When you are tasked with making decisions together, you can only act together.
• • Jointly and severally. When you are tasked with making joint and several decisions, you can act either together or independently.
• • Together in some decisions and jointly and severally in other decisions. For example, you might be appointed to act independently in day-to-day matters and act collectively on more important decisions.
What are your duties as a lawyer?
When the donor loses mental capacity, you must manage the donor’s property and affairs and make decisions that the donor cannot make. This could include, for example:
• Pay bills.
• Operation of bank accounts.
• Make investment decisions.
• Sale of real estate.
The donor can specify in the LPA that you can act as a lawyer even if the donor is still able to make financial decisions. This does not mean that you can make all financial decisions for the donor. It just means you can act on behalf of the donor if they allow you to do so at the time. This can be helpful when the donor is unwell (for example, when they are physically unable to go to the bank) or when they are on a long vacation.
Are you getting paid
You can reclaim all of your reasonable expenses from the donor. Expenses include, for example, the cost of phone calls to the donor, travel to the donor’s bank, and postage to cover the donor’s household expenses.
What are the limits of what you can and cannot do?
The Mental Capacity Act 2005 (MCA 2005) contains statutory restrictions with five key principles that you must be aware of:
1. A person must be presumed to have capacity unless it is determined that they lack capacity. You need to assume that the donor will be able to make financial decisions and look at each decision as the donor makes it to help them decide if possible.
2. A person should not be treated as incapable of making a decision unless all practical steps to assist the donor are attempted without success. Some people need help making a decision or communicating. You may need to help the donor with non-verbal communication or provide them with relevant information so that they can easily access it. The capacity of the donor can vary, so there may be a specific time of day that is best for making decisions.
3. A person should not be treated as unable to make a decision simply because he or she makes an ill-advised decision. It is important to realize that the giver is someone who may have different beliefs, values, and attitudes about you. The donor may make a decision that you think is unwise despite the ability to make that decision.
4. Any action or decision taken under the MCA 2005 for or on behalf of a person who lacks the capacity must be taken or taken in their best interests. This is fundamental and should support whatever you do on behalf of the donor.
5. Before any action is taken or a decision is made, assess whether its purpose can be achieved so effectively that the rights and freedom of action of the person are less restricted.
You need to use the same care and skill that you would use to make decisions about your own life.
The Code of Conduct of the Mental Performance Act contains useful information.
Should you keep records?
You must keep accounts, receipts, and records of financial transactions made on behalf of the donor. The Office of the Guardian (OPG) can ask you to present this at any time. You should also completely separate your own finances from those of the donor.
Can you give gifts on behalf of the donor?
The types of gifts that you can give on behalf of the donor are strictly limited. For example, you can give birthday, Christmas, and wedding gifts as gifts, provided the gifts are appropriate for the donor’s financial resources. You cannot give inheritance tax planning gifts or pay school fees for the donor’s grandchildren without filing a petition in court. If you are unsure whether you can use the donor’s funds to give a gift, contact the OPG.
Are there any instructions or settings in the LPA?
The donor can further restrict your authority in the LPA. These are known as instructions and you should check the wording in the Instructions field in Section 7 of the LPA. The general instructions include:
• You must submit annual accounts to a person of the donor’s choice
• You can appoint an investment manager to make decisions about the donor’s investments.
The donor can provide advice at the LPA on how they would like you to manage their affairs.
Can you handle the donor’s business interests?
In general, under an LPA, an attorney can handle the donor’s business interests. However, you should check to see if there is anything in the Instructions section (Section 7) of the LPA that says you are not authorized to do so. A director of a company cannot delegate his powers and responsibilities to an attorney unless the company’s articles of association specifically provide for it.
Who will check that you are doing the right thing?
Anyone who suspects that a lawyer is improperly performing his or her duties or is exploiting or abusing the donor can contact the Office of Guardian (OPG). The OPG will investigate the complaint and may direct one of its visiting teams to see a lawyer and investigate. In more serious cases, the OPG refers the matter to the Court of Justice.
If you have any concerns about a fellow attorney, you should raise them first with the fellow attorney and then, if this cannot be resolved, with the OPG.
Are you protected if something goes wrong?
If you are acting in accordance with your legal obligations and in the best interests of the donor, you are unlikely to be criticized for decisions you have made on behalf of the donor.
How should you use the LPA after registration?
When you start using the LPA, you may need to demonstrate your eligibility to:
• The local authority.
• Nursing homes.
• Other third parties.
Avoid giving the originally registered LPA to third parties. Instead, offer to provide an office or a certified copy. We can certify a copy of the LPA for you.
How does your appointment end?
If the donor dies, the LPA ends automatically. Send the original LPA and death certificate to the OPG as soon as possible.
If you are appointed as joint attorney and one of the other attorneys dies, your appointment will end unless a replacement is appointed.
Can you give up your appointment?
You can stop acting as an attorney at any time. If the LPA is registered, you will need to fill out the LPA005 form and send the original to the donor. You will also need to send a copy to the OPG and any other lawyers named in the LPA. If you are the only attorney, you should send a copy to all the substitute attorneys listed on the LPA.