Lasting Powers of Attorney: should I agree to be an Attorney?
There have been numerous cases before the Court of Protection asking the Court to revoke a Lasting Power of Attorney (LPA) because the attorneys have used their powers carelessly or irresponsibly.
Whilst many people agree to act as attorneys, they often do not give much thought to the level of responsibility they are agreeing to take on. Many attorneys do not realise that once they start acting on the donor’s behalf, they become personally accountable for their actions and will be supervised by the OPG and possibly the Court of Protection.
As an attorney you must not take advantage of your role nor put yourself in a position of personal conflict with the person you are acting for. The Mental Capacity Act requires that an attorney acts in accordance with a certain standard of care and skill when exercising his duties.
An attorney must carry out the donor’s instructions and act in the donor’s best interests. An attorney has a duty to keep accounts and has a fiduciary duty towards the donor. An attorney must keep the donor’s money and property separate from his own and may need to take advice from the Court of Protection on certain transactions, if the LPA is unclear as to the donor’s wishes.
In the case of Re OL [2015] EWCOP 41 Senior Judge Lush was satisfied that the donor’s attorneys (who were her children) had acted in a way that contravened their authority. It was held that they failed to keep accounts, produce records, took advantage of their position and obtained personal benefits – all to their mother’s significant financial detriment.
The LPA was revoked and a professional invited to conduct an investigation with a view to restoring the donor’s estate to the position it was before the attorney’s managed it “recklessly and irresponsibly”.
It is important that attorneys are aware of the onerous duties they are taking on before agreeing to an appointment and that they understand how to manage a donor’s estate properly. We are able to provide advice on all aspects of LPA management and are frequently appointed as professional attorneys or Deputies.