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  • Writer's pictureBrenden OSullivan

A Comprehensive Guide to POA: What You Need to Know in Britain

Navigating the complexities of a Lasting Power of Attorney (LPA) in Britain can be daunting, especially for those appointed as LPA attorneys with no legal background. This comprehensive guide aims to demystify the process, outlining the essential aspects of LPA, the responsibilities of an attorney, and the legal and ethical considerations involved. It also provides practical advice for dealing with challenges and accessing professional support, ensuring that attorneys are well-prepared to act in the best interests of the donor.

Key Takeaways

  • Understanding the two types of LPA, health and welfare vs property and financial, is crucial for making informed decisions on behalf of the donor.

  • An LPA must be registered with the Office of the Public Guardian before an attorney can begin acting, which can take eight to ten weeks.

  • Attorneys have a duty of care to act in the donor's best interests, manage finances diligently, and maintain confidentiality.

  • Misconduct, such as misuse of funds or neglect of the donor, can lead to intervention by the OPG or the Court of Protection, and potential criminal liability.

  • Seeking guidance from a Power of Attorney Solicitor is advisable for those uncertain about their duties or facing complex situations as an LPA attorney.

Understanding Lasting Power of Attorney (LPA)

The Fundamentals of LPA

Understanding the Lasting Power of Attorney (LPA) is crucial if you're considering appointing someone to manage your affairs should you lose mental capacity. An LPA is a legal document that allows you to nominate a trusted individual, known as an attorney, to make decisions on your behalf. This arrangement is particularly important for ensuring that your health, welfare, and financial matters are handled according to your wishes.

There are two distinct types of LPA: one for health and welfare and another for property and financial affairs. Each serves a specific purpose:

  • Health and Welfare LPA: Activated when you can no longer make decisions due to mental incapacity. It covers decisions about your daily care, medical treatment, living arrangements, and social activities.

  • Property and Financial LPA: Can be effective immediately or upon loss of mental capacity. It allows your attorney to manage your finances, including paying bills, collecting benefits, and handling property transactions.

It's essential to discuss your preferences with the person you choose as your attorney, ensuring they understand your wishes and can act in your best interests. While legal expertise is not a prerequisite for an attorney, seeking advice from a Power of Attorney Lawyer can be beneficial.

Types of LPA: Health and Welfare vs Property and Financial

In Britain, understanding the distinction between the two types of Lasting Power of Attorney (LPA) is crucial for ensuring that your future is in safe hands. A health and welfare LPA is activated only when you lose mental capacity, allowing your attorney to make personal decisions on your behalf, such as your living arrangements, medical care, and daily routine.

On the other hand, a property and financial LPA can be effective immediately, if you wish, even before any loss of mental capacity. This enables your attorney to manage your financial affairs, including handling bills, managing your property, and overseeing investments.

Here's a quick comparison to help you grasp the key differences:

  • Health and Welfare LPA: Activated upon loss of mental capacity; covers personal welfare and medical decisions.

  • Property and Financial LPA: Can be activated at any time with your consent; covers financial matters and property management.

The Importance of Registering Your LPA

Once you've been appointed as an attorney, it's crucial to register your Lasting Power of Attorney (LPA) with the Office of the Public Guardian. This formal step is not just a bureaucratic requirement; it's a safeguard for both you and the donor. Registration ensures that your authority to make decisions on the donor's behalf is recognised and can be acted upon when necessary.

Before registration, it's essential to understand the donor's wishes thoroughly. This preparatory dialogue will guide your actions, ensuring that you can honour their preferences regarding financial matters or healthcare treatments in the event of their incapacity.

If you're uncertain about any aspect of your duties or the registration process, seeking advice from a Power of Attorney solicitor can provide clarity and peace of mind. Remember, acting as an LPA attorney is a significant responsibility, and guidance is available to support you in this role.

The Role and Responsibilities of an LPA Attorney

Duties of an Attorney

As an attorney under a Lasting Power of Attorney (LPA), you are entrusted with significant responsibilities. Your primary duty is to act in the best interests of the donor, ensuring their needs are met in a manner they would have approved of. This involves making decisions about their finances, health, and welfare, which can sometimes be complex and emotionally challenging.

Your duties include, but are not limited to:

  • Keeping detailed accounts of the donor's financial transactions

  • Ensuring the donor's assets are kept separate from your own

  • Making decisions that reflect the donor's known wishes and preferences

If you find yourself in disagreement with a co-attorney, it's important to address the issue directly and seek resolution. Should the matter remain unresolved, contacting the Office of the Public Guardian (OPG) is the next step, where you may need to provide evidence to support your concerns.

Acting in the Donor's Best Interests

As an LPA attorney, your paramount duty is to act in the best interests of the donor. This encompasses a range of responsibilities outlined by the Mental Capacity Act 2005, which includes applying a duty of care, carrying out the donor's instructions, and respecting their confidentiality.

  • Consider the donor's past and present wishes, feelings, beliefs, and values.

  • Engage with family members, friends, and carers to gather their views.

  • Avoid making assumptions based on age, condition, appearance, or behaviour.

Before the LPA is registered, it's advisable to have in-depth discussions with the donor about their preferences. Understanding their perspective will guide you in making decisions that align with their interests, particularly in situations where they cannot make those decisions themselves.

Keeping Accounts and Separating Finances

As an LPA attorney, it's your duty to maintain clear and accurate records of the donor's financial affairs. Keeping detailed accounts is not just a matter of good practise; it's a legal requirement. You'll need to track all income, expenditures, investments, and any other financial transactions related to the donor's estate.

  • Ensure all accounts are kept up-to-date.

  • Separate your personal finances from those of the donor.

  • Retain receipts and documents for all transactions.

It's also crucial to prepare annual statements that can be reviewed by the donor, their family, or by legal bodies if necessary. This transparency helps to prevent misunderstandings and provides a clear trail of your stewardship.

Legal and Ethical Considerations for LPA Attorneys

Standard of Care and Duty of Care

As an LPA attorney, you are entrusted with a significant level of responsibility. You must apply a particular standard of care and skill, known as a duty of care, when making decisions on behalf of the donor. This involves acting in the donor's best interests at all times and following the instructions set out in the LPA.

To ensure you meet these obligations, consider the following points:

  • Always assume the donor can make their own decisions unless it is proven otherwise.

  • Have a reasonable belief that the donor lacks capacity before acting on their behalf.

  • Respect the donor's confidentiality and act in good faith.

  • Follow any directions given by the Court of Protection.

If you are managing a property and financial LPA, additional duties include keeping accounts and ensuring the donor's assets are kept separate from your own. Failure to adhere to these responsibilities can have serious consequences, including being ordered to compensate the donor for any loss or, in severe cases, facing criminal liability.

Confidentiality and Good Faith

As an LPA attorney, you are entrusted with not only the legal authority but also the ethical duty to maintain strict confidentiality regarding the donor's affairs. This obligation is paramount and extends to all aspects of your role, from personal information to financial details.

  • Confidentiality breaches

  • Franchise / FDD reviews

  • Sale of Business

  • Purchase of Business

  • Breach of Contract

Acting in good faith means that your decisions and actions must align with the donor's best interests and the powers granted to you. It's essential to avoid any conflicts of interest and to be transparent in your dealings.

Consequences of Misconduct

As an LPA attorney, it's crucial to understand that misconduct can lead to serious repercussions. If you fail to adhere to the responsibilities and legal requirements of your role, you may face penalties ranging from fines to disqualification, and in severe cases, criminal charges.

The Office of the Public Guardian (OPG) has the authority to investigate allegations of misconduct and take appropriate action. This could include:

  • Revoking your authority to act as an attorney

  • Referring the matter to the Court of Protection

  • Reporting the case to other regulatory bodies, which may lead to further sanctions

Recent cases highlight the gravity of such actions. For instance, a solicitor was struck off for taking shortcuts with LPA signatures, a decision described by the Solicitors Disciplinary Tribunal as "troubling on many levels". This serves as a cautionary tale for all LPA attorneys to maintain rigorous standards of conduct.

Navigating Challenges and Disputes as an LPA Attorney

Dealing with Concerns and Complaints

When you're acting as an LPA attorney, it's crucial to address any concerns or complaints promptly and effectively. If someone disagrees with your decisions or suspects you're not fulfilling your duties, they can contact the Office of the Public Guardian (OPG) or the Court of Protection. Here's what you should do:

  • Communicate openly with the person raising the concern, attempting to resolve the issue directly.

  • If the matter cannot be settled, be prepared to provide evidence to support your actions to the OPG.

  • Understand that the OPG may conduct checks, which could include visits and consultations with relevant parties.

Remember, acting with transparency and integrity is key to preventing and resolving disputes. Should you face allegations of misconduct, such as confidentiality breaches or breach of contract, it's essential to seek legal advice immediately.

The Role of the Office of the Public Guardian

As an LPA attorney, you are not alone in your responsibilities. The Office of the Public Guardian (OPG) plays a crucial role in overseeing the process and ensuring that attorneys act in accordance with their legal obligations. Should any concerns arise regarding your conduct or decisions, the OPG has the authority to intervene.

If disputes occur or if you're unsure about your actions, the OPG is your point of contact. They can offer advice, address complaints, and, if necessary, take steps to protect the donor's interests. Here's what you might expect if your actions as an attorney come under scrutiny:

  • Arrange to visit you and the donor

  • Contact other people involved, such as family or care workers

  • Investigate any evidence of misconduct

  • Potentially disqualify you from your role if misconduct is proven

Remember, the OPG's goal is to safeguard the well-being of those who have granted LPAs, ensuring that their health and financial decisions remain in trusted hands.

Intervention by the Court of Protection

If concerns arise about how you are fulfilling your duties as an attorney, the Court of Protection has the authority to intervene. This may occur if someone, such as a family member or care worker, suspects that you are not acting in the donor's best interests or are mismanaging their affairs. The Court can conduct an investigation, which might include visits to both you and the donor, and consultations with relevant parties.

Should the Court find evidence of misconduct, they have the power to remove you from your role. The grounds for such action include, but are not limited to:

  • Not adhering to the LPA's terms

  • Failing to act in the donor's best interests

  • Misusing the donor's funds

  • Benefiting oneself from the donor's assets

  • Mistreating the donor

  • Coercing or deceiving the donor into creating the LPA

It is crucial to understand the potential consequences of your actions as an attorney and to always strive to uphold the highest standards of care and ethical conduct.

Seeking Professional Advice and Support

When to Consult a Power of Attorney Solicitor

Seeking the expertise of a Power of Attorney solicitor is advisable when you're faced with complexities or uncertainties in your role as an LPA attorney. If you're unsure about the legalities of your decisions or the scope of your authority, it's time to get professional advice.

  • When you're initially appointed and need to understand your responsibilities.

  • If you encounter a situation not clearly addressed by the LPA.

  • When there are disputes among family members or with third parties.

  • If you suspect or face allegations of not acting in the donor's best interests.

Remember, a solicitor can provide clarity and guidance, helping you to avoid potential legal pitfalls. For initial guidance or to discuss any issues, do not hesitate to reach out to a specialist in Power of Attorney law.

Key Contacts for Expert Guidance

When you're stepping into the role of an LPA attorney, having access to expert guidance is crucial. Solicitors specialising in Power of Attorney matters can provide you with the necessary legal advice and support. Here's a list of key contacts you might consider reaching out to:

  • Power of Attorney Solicitors | Smith Partnership: For comprehensive legal advice, you can contact their expert team at 0330 123 1229 or via email at info@smithpartnership.co.uk.

  • The Office of the Public Guardian: They can offer guidance on your responsibilities and any concerns you may have.

  • The Law Society: They can help you find a solicitor with the specific expertise you need.

Preparing for Your Role as an Attorney

As you prepare to take on the responsibilities of an LPA attorney, it's crucial to understand the scope of your role and the expectations placed upon you. Familiarise yourself with the legal and practical aspects of acting on someone else's behalf. This includes knowing the extent of your powers and when they come into effect.

  • Review the LPA document carefully.

  • Seek clarification on any terms or conditions that are unclear.

  • Establish a system for record-keeping and decision-making.

Remember, you are stepping into a position of trust and your actions must always reflect the best interests of the donor. Should you feel uncertain about any aspect of your duties, do not hesitate to seek professional advice.

Navigating the complexities of estate planning can be daunting, but you don't have to do it alone. At East Sussex Wills, we offer expert will writing and lasting power of attorney services tailored to your unique needs. Our team is committed to providing you with the highest level of confidentiality and professionalism. Don't hesitate to reach out for a free quotation or to schedule a convenient appointment. Visit our website for more information and to get in touch with our specialists who are ready to assist you.

Conclusion

In summary, this comprehensive guide has aimed to demystify the intricacies of Lasting Powers of Attorney (LPA) in Britain, providing essential knowledge for those appointed as attorneys and those considering the appointment. The responsibilities of an LPA attorney are significant, encompassing the management of health, welfare, property, and financial matters with a duty to act in the best interests of the donor. It is crucial to understand the legal obligations and the importance of acting with care, skill, and in good faith. Should you require further assistance or wish to delve deeper into any aspect of LPA, our team of specialists in London, Surrey, and Middlesex are at your service. Remember, acting as an attorney is a profound commitment to someone's trust and well-being, and with the right guidance, it can be a fulfilling role that ensures the donor's wishes are respected and protected.

Frequently Asked Questions

What is a Lasting Power of Attorney (LPA)?

A Lasting Power of Attorney (LPA) is a legal document that allows an individual (the 'donor') to appoint one or more persons (known as 'attorneys') to make decisions on their behalf should they lose mental capacity. There are two types of LPA: one for health and welfare and another for property and financial affairs.

When should I start acting as an attorney?

Before you can begin acting as an attorney, the LPA must be registered with the Office of the Public Guardian (OPG), which typically takes eight to ten weeks, provided there are no errors in the application. The LPA will be registered when the OPG has stamped the application as valid.

What are the duties of an LPA attorney?

The duties of an LPA attorney include acting in the donor’s best interests, applying a standard of care and skill (duty of care), carrying out the donor’s instructions as set out in the LPA, helping the donor make decisions, respecting confidentiality, and following any directions from the Court of Protection.

What checks will be carried out on me if I am acting as an attorney?

If there are concerns about how you are fulfilling your role, the Office of the Public Guardian and the Court of Protection may conduct checks. They might visit you and the donor, contact relevant individuals, and can stop you from acting as an attorney if they find evidence of misconduct.

What does it mean to ‘act in the best interests’ of the donor?

Acting in the best interests of the donor means considering their wishes and feelings, beliefs and values, and ensuring their rights and dignity are respected while making decisions that benefit their welfare and financial interests.

Can I be held liable for my actions as an LPA attorney?

Yes, as an LPA attorney, you can be held legally responsible for your actions. If your decisions result in the donor suffering a loss, you may be required to compensate them. Criminal liability may also arise if you mistreat or neglect the donor.

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