More people are taking out Lasting Powers of Attorney to allow Attorneys to act on their behalf in relation to their Financial and Welfare decisions, if in the future they are unable to act for themselves. Investigations by the Office of the Public Guardian (“OPG”) into the actions of Attorneys are on the rise.
One reason for investigation by the OPG might be as a result of the Attorney misunderstanding his or her role.
Every decision by the Attorney must be in the Donor’s best interests as set out in the Mental Capacity Act 2005 Principles and the Code of Practice. An Attorney cannot benefit from his position. Problems arise where an Attorney takes funds from the Donor, even under a belief that the Donor would have approved this.
Gifts can only be made in certain limited circumstances. A gift can be made to a family member, friend or acquaintance of the Donor on a customary occasion, such as a birth, birthday, wedding or civil partnership and at Christmas or other holiday where it is customary to give gifts. Gifts can also be made to a charity that the Donor might have given to if they had mental capacity. Gifts cannot be made to a person or organisation unconnected to the Donor. Any gift must be reasonable given the size of the person’s estate.
Attorneys can make investment decisions on behalf of the Donor if this has been specifically authorised by the wording of the LPA document and care must be taken in the drafting.
It is important that anyone appointed as an Attorney takes time to understand their role before acting, and consults a solicitor if they are in any doubt. They can then be assured of acting in the best interests of their loved ones and that they are acting legally at all times.
If you would like any further information or advice then please do not hesitate to contact us on 0113 4673430