The person who makes a Lasting Power of Attorney (LPA) is known as the donor, while the person they appoint is known as the attorney.
Being an attorney does not mean you automatically take control of everything in someone's life. Your authority depends on the type of LPA, what the donor has specified in the document and whether they are still able to make the particular decision themselves.
It is also an important legal responsibility.
If you are looking for a broader explanation first, our guide to what power of attorney is covers the different types of Power of Attorney and how they work.
What Are You Responsible for as an Attorney?
Your role is to act in the donor's best interests and within the authority they have given you.
Wherever possible, you should support the donor to make their own decisions rather than automatically making decisions for them.
Having Power of Attorney does not mean that the donor loses the right to make their own choices simply because an LPA exists.
As an attorney, you should also take account of any instructions or preferences included within the LPA and consider the donor's wishes, values and previous decisions when acting for them.
You cannot simply make the decision that you personally think is best.
What Decisions Can You Make With Power of Attorney?
This depends on which type of Lasting Power of Attorney you have been appointed under.
There are two types in England and Wales.
Property and Financial Affairs
If you are appointed under a Property and Financial Affairs LPA, your role could include helping with:
- Bank and building society accounts
- Household bills
- Benefits and pensions
- Property
- Investments
- Care costs and other financial commitments
Once the LPA has been registered, the donor can allow you to help with their financial affairs while they still have mental capacity.
Exactly what you can do will depend on the instructions contained within the LPA.
Health and Welfare
A Health and Welfare LPA can cover decisions relating to matters such as:
- Medical treatment
- Care and support
- Where the donor lives
- Their daily routine
- Certain decisions about life-sustaining treatment
Unlike a Property and Financial Affairs LPA, you can only make a health and welfare decision when the donor does not have the mental capacity to make that particular decision themselves.
Does Being Given Power of Attorney Mean I Can Make Every Decision?
No, an attorney's authority has limits. The LPA itself may contain specific instructions about what you can and cannot do. There are also decisions that an attorney cannot simply make using an LPA. For example, being somebody's attorney does not allow you to make or change their Will.
You must also consider mental capacity for each individual decision. Someone might be unable to make one complex financial or medical decision but still be perfectly capable of making other decisions for themselves. You should not treat someone as lacking capacity simply because you disagree with the choice they make.
What Does Acting in Someone's Best Interests Mean?
Acting in the donor's best interests is one of your most important responsibilities as an attorney.
It means considering what is best for them, rather than what is easiest for you or what you would personally choose in the same circumstances.
Depending on the decision, this can include considering:
- The donor's past and present wishes
- Their beliefs and values
- Anything they have included within the LPA
- Whether they may regain the ability to make the decision themselves
- The views of relevant family members, carers or professionals
You should also consider whether there is a less restrictive way of achieving the same outcome.
Do I Need to Keep Records as an Attorney?
Yes, you should keep appropriate records of important decisions you make as an attorney.
If you are managing somebody's property and finances, you should also keep records relating to their assets, income and spending.
Their money and property should generally be kept separate from your own unless something is already jointly owned, such as a joint bank account.
The Office of the Public Guardian or Court of Protection can ask an attorney to explain how an LPA is being used, so keeping clear records is an important part of the role.
Can I Use the Donor's Money or Give Gifts?
Having Power of Attorney does not give you unrestricted access to somebody else's money.
Any spending must be consistent with your authority and the donor's best interests.
There are particularly strict rules around making gifts using the donor's money. Attorneys have limited authority to make reasonable gifts in certain circumstances, such as customary birthday or wedding gifts or appropriate charitable donations.
Larger or unusual gifts may require permission from the Court of Protection.
You should never use your position as an attorney simply to benefit yourself.
What If More Than One Attorney Has Been Appointed?
It is common for somebody to appoint two or more attorneys.
You will need to check the LPA to see how you have been appointed to make decisions.
Attorneys may be required to act jointly, meaning decisions must be made together, or jointly and severally, which allows attorneys to make decisions together or individually.
Some LPAs use a combination of the two, requiring certain important decisions to be made jointly while allowing attorneys to act independently on other matters.
Understanding how you have been appointed is important before you begin acting.
Can I Stop Being Someone's Attorney?
Yes. Being appointed as an attorney does not mean you have to continue in the role indefinitely.
If you no longer wish or are no longer able to act, there is a formal process for stepping down.
There are also circumstances where an attorney must stop acting, including if they lose mental capacity themselves. Certain other events can affect an appointment depending on the type of LPA and how it has been prepared.
What happens to the LPA afterwards will depend on whether other or replacement attorneys were appointed.
What Happens If an Attorney Does Not Follow Their Responsibilities?
Attorneys can be held accountable for the way they use their authority.
The Office of the Public Guardian can investigate concerns about an attorney, including allegations that they have misused the donor's money, acted outside their authority or failed to act in the donor's best interests.
Serious concerns can also involve the Court of Protection, which has powers relating to attorneys and Lasting Powers of Attorney.
If you are unsure about your responsibilities, getting advice before making a significant decision can help avoid problems later.
What Should I Do If I've Been Given Power of Attorney?
Start by making sure you understand exactly what you have been appointed to do. Read the LPA carefully, check whether there are any instructions or restrictions, understand how you are required to make decisions with any other attorneys and talk to the donor about their wishes while they are able to explain them. Being someone's attorney can involve significant responsibility, but having clear conversations early can make it much easier to act in accordance with their wishes if your help is needed in the future.
At John Fowlers, we can help both donors and attorneys understand how Lasting Powers of Attorney work and what their responsibilities mean in practice.
If you are considering making an LPA, have been appointed as an attorney or need advice about an existing arrangement, visit our Lasting Powers of Attorney service page or contact the John Fowlers team to discuss your circumstances.