What Are the Duties of Power of Attorney? (UK)

A Power of Attorney is a legal document that allows someone to make decisions on behalf of another person, often referred to as the 'donor.' These decisions must be made in the person’s best interests. The Mental Capacity Act 2005 governs the legal aspects of Powers of Attorney and aims to ensure that people can't make arbitrary or intentionally harmful decisions for someone else. The Office of the Public Guardian (OPG) is in place to supervise the functioning of these arrangements.

In the following guide, the expert will disputes team at JMW Solicitors aims to give you a comprehensive look at the key duties and obligations that an attorney under a Power of Attorney arrangement is held to in the UK, and what you may be able to do if an attorney neglects their duties.

Types of Power of Attorney in the UK

There are multiple types of Power of Attorney in the UK, and each comes with its own set of rules, limitations and responsibilities. Here's a detailed look at them:

Lasting Power of Attorney (LPA)

An LPA is a legal document that allows you to appoint one or more individuals to help you make decisions or to make decisions on your behalf. This becomes active if you lose the mental capacity to make decisions for yourself or if you no longer wish to do so. There are two main types of LPA:

1. A Property and Financial Affairs LPA covers your financial decisions and allows your attorney to manage your money and property. Duties might include paying your bills, collecting your income, benefits or pension, or selling your home.
2. A Health and Welfare LPA allows your attorney to make decisions about your health and personal welfare. These can include medical care, daily routine planning (meals, dressing, and other day-to-day necessities) and moving into a care home.

Enduring Power of Attorney (EPA)

EPAs were replaced by LPAs in 2007, but if you made an EPA before that date, it should still be valid. An EPA only covers decisions about your property and financial affairs; it doesn't cover health and welfare issues. One important thing to note is that an EPA must be registered with the Office of the Public Guardian (OPG) if the donor starts to lose or has lost mental capacity. If you still have the mental capacity to make your own decisions, you should consider replacing your EPA with an up-to-date LPA.

Each type of Power of Attorney has its own application process, forms to fill in and fees to pay. If you are looking to apply for a Lasting Power of Attorney or make the switch from an Enduring Power of Attorney, you should choose the LPA that best suits your needs, considering what powers you may need in place now or in the future.

Key Duties of Attorneys

Becoming an attorney gives someone the power to make decisions about someone else's life - it should not be taken lightly, and it carries a range of legal responsibilities that can lead to serious complications for the attorney if they do not abide by them.

Acting in the Donor's Best Interests

First and foremost, attorneys are bound to act in the donor's best interests. In legal terms, this means that every decision they make should reflect what is most beneficial for the individual concerned. Attorneys should consult with medical professionals when making health-related decisions and be transparent about financial dealings.

Making Financial Decisions

An attorney responsible for financial decisions, they'll have a range of tasks to manage. These can include:

• Managing bank accounts
• Paying bills and taxes
• Taking care of property issues
• Managing investments wisely

Making Health and Welfare Decisions

If the Power of Attorney covers health and welfare, the attorney will be making choices related to:

• Medical treatment
• Daily routine, like eating and dressing
• Residency, such as choosing a care home or other accommodation

Record-keeping

Good record-keeping is essential for attorneys. They should document all decisions made and actions taken, including financial transactions. It’s a good idea to update these records regularly to keep everything transparent and in order.

Limitations of Power

While holding a Power of Attorney grants significant decision-making capabilities, an attorney’s powers are not without limits. There are boundaries laid out by the law, ethical considerations, and sometimes by the donor themselves in the form of specific instructions or preferences.

Overriding the Donor's Wishes

Even if the donor has lost mental capacity, any known wishes or instructions they left when still mentally capable should be respected. Attorney’s can't simply make their own decisions that the donor would object to if they were able to express their wishes.

Restriction on Gifts

Financial attorneys are usually not allowed to make gifts from the donor's assets unless it's specified in the Power of Attorney document or it's a customary occasion like a birthday, in which case small, reasonable gifts may sometimes be allowed.

No Personal Benefit

Attorneys mustn't use the donor's money or assets for their own benefit, unless explicitly authorised to do so in the Power of Attorney agreement or by a court.

Decision-Making Limitations

The types of decisions attorneys can make depend on the type of Power of Attorney held. For example, a Financial Decisions LPA won't allow them to make health or welfare decisions for the donor. Attorneys should always check the document carefully to understand the scope and limits of their power.

Consultation with Others

Sometimes, attorneys may be legally required to consult other parties, such as other named attorneys or family members, before making significant decisions. These requirements will be laid out in the Power of Attorney document or may be mandated by a court.

Legal Restrictions

Some decisions, such as performing a marriage or divorce on behalf of the donor, are outside the remit of what any attorney can legally do.

Termination of Power of Attorney

Under certain conditions, an attorney’s role may be terminated - for example, if they are granted the Power of Attorney while married to the donor but later divorce, they may not continue in the role unless the Power of Attorney document specifies that they should do so. In some circumstances, members of the donor’s family or others may apply to have the attorney removed from the position, but this is rare and only typically occurs when there is suspicion of misconduct on the part of the attorney.

Court Intervention

In cases where there's concern that an attorney isn’t acting in the donor's best interests, a court may intervene to either guide their actions or to remove their powers entirely.

Being aware of these limitations is not only legally necessary but also ensures they act ethically and in the best interests of the donor. If in doubt, always seek professional legal advice to ensure you're on the right track.