‘Lasting powers of attorney can have many benefits – control, autonomy, flexibility, financial security and peace of mind – to name but a few,’ says Cherilyn Ford, Wills and later Life Advisor in the private client team with QualitySolicitors Parkinson Wright. ‘The Mental Capacity Act 2005 and its associated Code of Practice provides the framework for LPAs and contains a number of safeguards to ensure that an LPA is not abused, but, as the BBC’s Sue Mitchell revealed in The Willpower Detectives: Shadow World, vulnerable people can still be exploited if they choose the wrong person to be their attorney.’
‘Making someone your attorney under an LPA bestows an enormous amount of power on them,’ continues Cherilyn. ‘You therefore need to select someone truly trustworthy and ensure that every possible safeguard is put in place so they can only wield the powers you intend them to have and the risk of abuse is minimised.’
What are the different types of LPA?
- A property and financial affairs LPA allows your attorneys to manage things like your bank accounts, investments, bills, benefit applications, and buying and selling your property if you are incapacitated.
- A health and welfare LPA lets your attorneys make routine daily decisions for you if you lose mental capacity, such as eating, washing, dressing, medical care, where you should live, or whether to continue life-sustaining treatment.
What are an attorney’s duties and curbs on their powers?
Acting in your best interests
The main duty of an attorney is to always act in your best interests. The Mental Capacity Act 2005 offers guidance on what best interests are, but this includes making decisions that mirror your values, beliefs and preferences where possible.
In addition, they should follow any verbal or written instructions you give them when you have mental capacity. If no such instructions were given, they should take reasonable steps to understand your wishes, which may require talking to your family, friends, or professional advisors.
Your attorney is also obliged to keep your money and property apart from their own, and must ensure your rights are observed and your independence unrestricted unless absolutely necessary. They are not allowed to take fees for their services beyond reasonable expenses, make loans to themselves, make purchases below market value or get involved in tax planning without court approval.
When can an attorney take up their duties?
Once registered with the Office of the Public Guardian (OPG) a property and financial affairs LPA can be used while you still have mental capacity if you consent, unless the LPA document forbids this.
A health and welfare LPA can only be used when you lose capacity, and it is up to the attorney to proffer evidence that you are mentally incapacitated. They may need to ask a doctor to provide an assessment of your mental state.
Assessing your mental capacity
Your attorney must allow you to make decisions for yourself if you are capable of doing so, and should assess your capacity on a decision-by-decision basis. Some days you might be capable of paying your mortgage, for example, but not have the mental capacity to sell your home. On other days you may be capable of making any decision, in which case the attorney should allow you to do so. Again, a doctor may be required to assess whether you are capable of making certain decisions.
Duty of skill and care
Your attorney is required to carry out their duties with a reasonable level of care and skill. Decisions should be informed and considered, based on the information available, and professional advice should be sought when needed.
If they are acting under the health and welfare LPA, they should monitor you to ensure you are receiving the support you need and ensure that your physical, emotional, and social needs are being met.
Conflicts of interest
Conflicts of interest must be avoided by the attorney, meaning they are not allowed to use their position to make decisions that enrich them or others at your expense.
If a potential conflict of interest arises – for example your attorney has a financial interest in a care home and is making decisions about your care arrangements – they are legally obliged to tell you about it and seek professional advice.
If the conflict cannot be satisfactorily resolved, they may need to seek guidance from the court or even step down to ensure your best interests are maintained.
Accessing your personal information
Your attorney has a right to access your personal information, such as medical records or bank details, to help them make decisions in your best interests. They can only ask for this information however, if it applies to a decision that they have a legal right to make.
Record-keeping
Your attorney should keep records of any decisions made on your behalf, documenting all financial transactions, care decisions, and any other matters that they deal with. Receipts, statements, and other documents should be kept as evidence of the decisions made. This is important because the OPG may ask for evidence that the LPA is working properly.
What more can you do to safeguard against abuse?
Further measures you can put in place to minimise the risk of LPA abuse include:
- Be very specific about what your attorney can and cannot do in the LPA document.
- Have more than one attorney and require all decisions to be made jointly rather than severally – this ensures that no one attorney can make a decision alone. This removes some flexibility from the process as if one attorney is not available decisions cannot be made, and if they disagree over a decision they may have to go to court to have the matter resolved, but it does ensure that a rogue attorney cannot continue on a pathway of abuse unchecked.
- Have a certificate provider – an independent person who confirms your understanding and capacity to make the LPA, and are not being pressured to do so.
How can a solicitor help?
Our solicitors are experienced in helping people with all aspects of estate planning, and will ensure your LPA is properly drafted, registered and contains sufficient instructions and restrictions to curb the possibility of abuse.
For further information, please contact Cherilyn Ford or a member of the wills and probate team on 01905 721600 or email worcester@parkinsonwright.co.uk
This article is for general information only and does not constitute legal or professional advice. Please note that the law may have changed since this article was published.