You have done the hard work and have completed a Lasting Power of Attorney but now what?
Below A series of questions and answers with the aim to guide you on how to use, or solve any issues you have with them post registration.
If you have any further questions please ask below in the comments and I will try and help, but please note this is just general help and should not be relied upon exclusively. Please consult your own legal representation if you need help.
What happens if the donor dies?
If the donor passes away the Lasting Power of Attorney will cease to have any effect, and any control over the estate of the donor will stop.
Any actions that you have done previous to this will continue though. For example property sale or purchases.
A copy of the Power of Attorney and proof of death (Death Certificate) should be sent tot he Office of the Public Guardian.
If the donor has a Will the Executors will now have control of the estate for probate purposes. If there was no Will then the relevant party should be instructed to apply for probate.
Please contact a specialist in the area for more information
What happens if an Attorney dies or is incapable?
If an Attorney under a Lasting Power of Attorney dies or become incapable to act it can result in a few things depending on how the Attorney’s were appointed.
If the Attorney was an Sole Attorney and there are no Replacement Attorneys that can take over then the Lasting Power of Attorney would come to an end. If the donor still has capacity a new Lasting Power of Attorney can be drawn up. However if they do not an Appointeeship or Deputyship may be needed.
If there is an Replacement Attorney, they shall step in and the Lasting Power of Attorney will continue. However if the are not willing or unable to act then the Lasting Power of Attorney shall come to an end.
If the Attorney was an Joint Attorney with another and there are no Replacement Attorneys that can take over then the Lasting Power of Attorney would come to an end. If the donor still has capacity a new Lasting Power of Attorney can be drawn up. However if they do not an Appointeeship or Deputyship may be needed.
If there is an Replacement Attorney, they shall step in alongside the surviving Attorney and the Lasting Power of Attorney will continue. However if the are not willing or unable to act then the Lasting Power of Attorney shall come to an end.
Joint and Severally appointed Attorneys
If the Attorney was appointed Jointly and Severally then the remaining Attorney can act along side a Replacement Attorney if there was one or by himself as well if there were none.
If there is one surviving Attorney the Power can continue and the rules as per “Sole Attorney” will apply if there are to pass away at a later date.
Should an Attorney inform the OPG of a change of Address
While it is not required under legislation the Attorney should supply the OPG with any changes of Address.
This enables the OPG to keep its records accurate and if there were any concerns later then the OPG would be able to investigate the matter.
Am I liable for the Donor’s Debts?
In a word, no.
As an Attorney you do not act as a guarantor and should only pay debts from the Donors own resources. If the resources fall short you may have to get debt advice on their behalf.
How do I know if my decision is in the best interest of the donor?
Knowing whether or not the decision is in the donors best interest is difficult to determine, if you feel you are unsure use the check list below:
- Are you sure the Donor lacks capacity?
- Ensure that you are not making an unjustified decision based only the person’s age, appearance, behaviour or condition?
- Can the decision be delayed until the donor regains capacity?
- Has the person been able to participate in the decision and, if not, why not?
- If the decision is in relation to life sustaining treatment, have you a) got the power via a lasting power of attorney health and welfare or via a Advance Decision and b) ensure that the motive for refusing treatment is not to bring about the person’s death.
- What are or were the person’s wishes, feelings, beliefs, values or other factors that he would consider, if able? (There is a general presumption in favour of following the person’s wishes unless it is irrational, irresponsible or impracticable).
- Is there a written statement or planned decision left by the donor that may be applicable?
- Have you consulted:
(i) any one named by the person to be consulted on this decision?
(ii) any carer or a person interested in the person’s welfare?
(iii) any other attorney of an LPA or deputy appointed by the Court of Protection?
Once you have gone through the above list make a record the following:
- How did you reach the decision?
- What are the reasons for the decision?
- Who did you consult and what did they say was in the person’s best interests?
- What particular factors did you take into account, when you made the decision, particularly if it conflicts with a consultee or the person concerned?
I am acting as an Replacement Attorney – Should I tell the OPG?
You should inform the OPG that you are not acting as an attorney and ensure that the LPA is returned to the OPG to note the change on the document and and to update the register.
If the LPA does not have a note of the change the replacement attorney may not be able to act
Can I amend the Lasting Power of Attoroney after execution?
A Lasting Power of Attorney once executed cannot be amended. However if there is an issue in Part B or C. Then the relevant part can be resigned by the parties provided that it is done in the prescribed order (B then C. So if B is redone then so does C).
However if there is an issue with Part A the whole form will have to be redone as the OPG can not rectify mistakes.
Have a look at common completion errors and solutions offered by the Office of the Public Guardian.
How do I get a Certified Copy of a Lasting Power of Attorney?
Since 3rd October 2011 the Office of the Public Guardian will no longer supply office copies of lasting or enduring powers of attorneys.
What this leaves you then is with two options:
Donor still has capacity
The donor can make certified copies of the Lasting Power of Attorney if they still have mental capacity. This can be done by copying the registered document and writing the following text at the bottom of each page:
“I certify that this is a true and complete copy of the original Lasting Power of Attorney”
The donor must then sign the bottom of each page.
Donor no-longer has capacity
The Powers of Attorney Act 1971 authorises solicitors to self-certify photocopies of a power of attorney, if the proper procedure is followed.
Section 3 of the 1971 Act states that the contents of an original power of attorney form can be proved by a photocopy, provided the copy has been certified on every page and at the end by the (mentally capable) donor or a solicitor. The certification must state that each page and the entire copy is a true and complete copy of the original.
The Act also allows further certified copies to be made from a certified photocopy – the original is not needed.
Do the Attorneys get paid?
An Attorney is entitles to out-of-pocket expenses if they did work solely for the Donor. They can however only receive a fee for their work if it is indicated on the Lasting Power of Attorney form by the Donor.
Out of pocket expense can include Professional Fees also such as for solicitors and accountant.
Please keep in mind though all expenses made on behalf of the Donor should be accounted for and records kept. However it is not necessary to use an accountant for this.
Does an Attorney have to make a decision where the donor is capable?
In the case of a Lasting Power of Attorney Health and Welfare, these only come into effect when donor has lost capacity. However with a Property and Financial Affairs Lasting Power of Attorney. It is possible to have the Attorneys make some decisions while the donor still has capacity.
This is to allow the donor to retain control over simple decisions while allowing the Attorney(s) to deal with more complex matter such a property transactions etc.
The scope of the allowed decisions at this time should be discussed with a professional so they can be drafted accurately in the Lasting Power of Attorney itself and can be refereed to when needed.
Can a Attorney make a Will?
A question recently asked was can a Attorney appointed under a Lasting Power of Attorney create a Will for the “donor”?
The answer is unfortunately no this is not possible. It may be possible for a “Deed of Variation” after the death of the donor by the beneficiaries of an existing Will but creation of a NEW Will by an attorney for the donor is not possible.
It may be possible however for the Court of Protection to create a Statutory Will on the donors behalf.
What if a Attorney or Donor become Bankrupt?
If the Donee or Attorney for a Lasting Power of Attorney is bankrupt, or has been under section 10(2) of the Mental Capacity Act 2005 (the Act) they cannot act and the instrument (lasting Power of Attorney) is considered void.
A check used to be done at the time of registration however if bankruptcy happens anytime even after registration it is considered void.
A attorney who has been declared bankrupt can never act as an attorney in a Lasting Power of Attorney: Property and Financial Affairs.
Can I give gifts on behalf of the donor?
An attorney can make gifts of the donor’s money or belongings to people who are related to or connected with the donor (including the attorney).
However this can only be done on specific occasions such as birthdays, weddings, and occasions where a gift is usually given (example religious holidays, or cultural events etc.)
There are no hard fast limits but the gift itself must be “reasonable”.
What are my obligations as an Attorney?
The Mental Capacity Act 2005 places a specific obligation on attorneys acting under a LPA to have regard to the MCA 2005 Code of Practice.
Under the Code of Practice you have a duty to:
- apply certain standards of care and skill (duty of care) when making decisions
- carry out the donor’s instructions
- not take advantage of your position and not benefit yourself, but benefit the donor (fiduciary duty)
- not delegate decisions, unless authorised to do so
- act in good faith
- respect confidentiality
- comply with the directions of the Court of Protection
- not to give up your role without telling the donor and the court.
In relation to Property and Financial Affairs LPAs you also have a duty to:
- keep accounts
- keep the donor’s money and property separate from your own, and
For more information see the MCA 2005 Code of Practice .