Attorneyship advice

What are the duties of an attorney?

The duties of an attorney are to act in the best interests of the person that you represent, who is the ‘donor’ of the Lasting Power of Attorney. There are two types of Lasting Power of Attorney: 

1. Property and Financial Affairs Lasting Power of Attorney
2. Health and Welfare Power of Attorney 

 A Lasting Power of Attorney is only valid to be used once it has been registered with the Office of the Public Guardian, who are the supervisory body for attorneys and deputies. 

What does an attorney for Property and Financial Affairs do?

An attorney for Property and Financial Affairs allows an attorney to make decisions about the donor’s financial affairs, which includes:  

• Managing their bank account 

• Making investment decisions for them 

• Selling their house if needed 

• Dealing with business interests 

• Paying bills 

• Managing tax returns 

• Making payments for maintenance and gifting within legal limits 

• Managing income and benefits. 

Usually they are able to start acting as an attorney even when the donor still has capacity to make decisions for themselves, provided that the Lasting Power of Attorney doesn’t say otherwise. They need to make all decisions in the best interests of the donor. 

What does an attorney for Health and Welfare do?

An attorney for Health and Welfare makes decisions about the donor’s living arrangements, health and medical care, who they should see, and day to day care. 

They are also able to make decisions about life sustaining treatment if specifically authorised to do so. Attorneys for Health and Welfare can only make decisions when the donor lacks capacity to make that decision for themselves. 

What does an attorney do?

Attorneys must make all decisions in the best interests of the donor. Specifically, they must: 

• Keep a record of important decisions that are made, when they are made, and how the decision has been reached, taking into account the best interests of the donor. 

• Keep a record of who has been asked for advice, and any disagreements. 

• Secure, keep a record of and manage the donor’s assets, expenses, income and how their finances have been spent, and comply with the restrictions on maintaining others and gifting, if they are a financial attorney. 

• Keep the attorney’s finances entirely separate from the donor’s. 

• Ensure that expenses incurred are appropriate and proportionate. An attorney can only claim expenses for things that are required to carry out their role, for example postage, travel costs for carrying out attorney duties, professional fees for things like completing the donor’s tax return.  

• Manage any conflict of interest that occurs, for example if the attorney is due to inherit the donor’s house under their will, and therefore refuses to sell it despite the funds being needed for care, this is a conflict of interest. 

• Seek appropriate legal, financial and medical advice to allow them to carry out their role effectively.  

• Make any necessary Applications to the Court of Protection, for example if a new Will is needed for a person that lacks mental capacity to make one for themselves, or a gift is proposed that is in excess of what is allowed by the guidance.  

 We are specialist attorney advice solicitors with offices in London Bridge and Streatham. We can assist you and advise you in your role as attorney across England, Wales, and internationally. We advise on any Court of Protection Application that may be needed.

What do I do if I have concerns about an attorney?

If you have concerns about the actions of an attorney, you should report them to the Office of the Public Guardian. They have a specialist team that investigates concerns about the actions of attorneys. 

We are also able to help advise you on making a report to the Office of the Public Guardian and can advise you in respect of other alternatives available to you in challenging a Lasting Power of Attorney.  

You may also wish to make a referral to the adult’s local Adult Safeguarding Team at the Local Authority, if you consider that they are at risk of neglect or abuse.  This is separate to making a referral to the Office of the Public Guardian. 

Another option is making an application direct to the Court of Protection to have an LPA produce an account and be replaced. This can be a more direct route to resolving serious issues.

If you have been appointed as an attorney or have concerns about an existing attorney, speak to our experienced team of solicitors. Call us on 020 7940 4060 or email mail@anthonygold.co.uk for expert advice.