Financial Decisions Lasting Power of Attorney – FAQs
What is a Financial Decisions Lasting Power of Attorney?
- A document by which someone gives you (the Attorney) authority to deal with their financial and legal affairs.
- Commonly known as an LPA.
- If the person has assets abroad, other legal systems may not always recognise an English LPA, so you may only be able to deal with assets in the UK.
When do I need to act as an Attorney?
- Once the LPA has been registered with the Office of the Public Guardian (OPG) then subject to any restrictions in the LPA, you will be able to act for the person who made the LPA (the Donor) for the rest of his or her life (so long as the power is not revoked).
- The Donor may ask you to take control of the Donor’s affairs, or it may become necessary because they are no longer mentally capable.
- If you apply to register the LPA then the OPG will give notice of the application to the Donor, who will then have the opportunity to object.
- It is important to note that you have no power to make decisions on behalf of the Donor until the LPA has been registered. If you do not start acting on a registered LPA for some time, it would be advisable for you to notify the Court when you do start acting so they can send you up to date information at that time.
What can I do as an Attorney?
You are able to deal with the donor’s affairs in much the same way as they can, subject to any express restrictions.
The types of things you may need or wish to do include:
- Buying or selling a property
- Opening, closing and operating bank and building society accounts
- Gaining access to their financial information
- Claiming, receiving and using benefits on behalf of the person
- Receiving income, inheritances or other entitlements due to the person
- Dealing with their tax affairs
- Paying household expenses
- Maintaining the person’s property, including insuring it and repairing it
- Investing the person’s savings
- Making limited gifts
- Paying for private medical care, residential or nursing care fees
This list is not intended to be exhaustive but only to be used as an indication of the duties an Attorney can carry out on behalf of the Donor.
- As Attorney you have important duties and responsibilities which are laid down in the Mental Capacity Act 2005 and explained in the Code of Practice.
- As an Attorney you should be familiar with the Code of Practice which can be accessed online at http://www.gov.uk. If you do not have internet access a hard copy can be obtained by calling The Stationery Office on 0333 202 5070.
- You must follow the principles set out in Section 1 of the Mental Capacity Act 2005.
Principle 1 – It should be assumed that everyone has capacity to make their own decisions unless it is proved otherwise
Principle 2 – A person should have all the help and support possible to make and communicate their own decision before anyone assumes they lack capacity
Principle 3 – A person should not be treated as lacking capacity purely because their decision is unwise
Principle 4 – Actions or decisions carried out on behalf of someone who lacks capacity must be in their best interests
Principle 5 – Actions or decisions carried out on behalf of someone who lacks capacity should not, as far as possible, limit that person’s rights or freedom of action
- You must always act in the best interests of the Donor. In general this will mean:
– Considering the Donor’s past and present wishes, feelings, beliefs and values
– Always confirming that the Donor does not have capacity to make this particular decision himself
– You can act if the Donor has asked you to even if they still have capacity. This is provided there are no contrary restrictions in the LPA
– Only making decisions the LPA authorises you to make. You may not make decisions about medical or personal welfare decisions, or vote for the Donor in elections or change his Will
– You will have duties to comply with any directions of the Court, keep accounts, keep the Donor’s money and your money separate, and not delegate decisions unless authorised to do so. Again this list is not exhaustive and should be used only as a guide. For further information you should consult the Code of Practice
How do I know if the Donor has capacity or not?
- You should use the two stage test set out in the Act, namely:
– Stage 1 – is the person suffering from a condition associated with dementia or the long term effects of brain damage?
– Stage 2 – does this impairment mean the person cannot make this specific decision?
- Further guidance and practical examples are set out in the Code of Practice.
Can I make gifts from the Donor’s assets?
- You are allowed to make limited gifts out of their assets although this is restricted to gifts to family, persons the Donor is connected to, and charities. Any gift must be of a reasonable amount and in the case of individuals should only be made on a particular date or event, e.g. birthdays, Christmas or marriage.
- If the Donor usually donated to charity then you can continue this practice.
- Other gifts always require a court order