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Attorney’s Responsibilities

 

Attorney’s Responsibilities

The Code of Practice specifically sets out the duties of attorney’s at para.7.58: 

  • to apply certain standards of care and skill (duty of care) when making decisions; 
  • to carry out the the donor’s instructions; 
  • not to take advantage of their position and not benefit themselves, but benefit the donor (fiduciary duty); 
  • not to delegate decisions, unless authorised to do so; 
  • to act in good faith; 
  • to respect confidentiality; 
  • to comply with the directions of the Court of Protection; 
  • not to give up their attorney role without telling the donor and the court. 

The Code of Practice provides in respect of property and affairs LPAs that the attorney(s) have a duty to: 

  • keep accounts; 
  • keep the donor’s money and property separate from their own. 

Paragraphs 7.59–7.68 make provision for these issues in more detail. 

Duties under the Code of Practice, paras.7.59–7.68 

Attorneys are required under the Code of Practice to comply with additional duties specific to managing LPA’s, with attorneys encouraged to read the relevant provisions in the Code of Practice (see Appendix ***** below). These principles are set out below. 

Duty of care 

‘“Duty of care” involves applying a certain standard of care and skill – depending on whether the attorney is paid for their services or holds relevant professional qualifications’ (Code of Practice, para.7.59). If the attorney is paid ‘they should demonstrate a higher degree of care and skill’. The non-paid attorney should use the same degree of ‘care, skill and diligence they would use to make decisions about their own life’. Paragraph 7.59 specifically states that solicitors, like other professionals, should demonstrate professional competence and follow their profession’s rules and standards. 

Fiduciary duty 

Attorneys must not take advantage of their position or allow their personal interests to conflict with professional ones. Decisions should ‘always benefit the donor, and not the attorney’ (Code of Practice, para.7.60) and the attorney should not allow other influences to affect how they act. They must not profit or make personal gain as an attorney. The attorney may receive gifts where the MCA 2005 permits these, whether or not at the the donor’s expense. 

Duty not to delegate 

Attorneys may not usually delegate their duties to a third party. They can seek professional or expert advice where appropriate, such as financial or medical advice. However, they must not ask another person to reach a decision they are authorised to make, unless authorised by the donor. 

Attorneys may ‘through necessity or unforeseen circumstances, or for specific tasks which the donor would not have expected the attorney to personally attend to’ acquire a limited power of delegation (Code of Practice, para.7.62). A decision that relies on the attorney’s discretion should not usually be delegated. 

Duty of good faith 

‘Good faith means acting with honesty and integrity’ (Code of Practice, para.7.63). This might be ensuring that any decisions made comply with the requirements of the donor. 

Duty of confidentiality 

Attorneys, like solicitors, have ‘a duty to keep the donor’s affairs confidential’ (Code of Practice, para.7.64). This confidentiality can be waived if, before capacity was lost, the donor gave express instructions to that effect. In this case the attorney would have to state that the donor  gave their permission and produce this as evidence. If there is a good reason for releasing information, such as the the donor’s best interests, risk of harm or public interest, the attorney should seek independent legal advice. 

Duty to comply with the directions of the Court of Protection 

MCA 2005, ss.22 and 23 give the Court of Protection power to make determinations on the operation or validity of an LPA. It may grant additional authority to attorneys or require production of records, or information such as accounts. If any such decisions have been made by the court, then the attorney(s) must comply with them (see Code of Practice, para.7.65). 

Duty not to disclaim without notifying the the donor and the OPG

Once an individual has assumed the role of an attorney, they must give notice to both the donor and the OPG in order to give it up (see Code of Practice, para.7.66).

Duty to keep accounts 

Attorneys acting under a property and affairs LPA are required to keep accounts detailing the the donor’s financial affairs. The Court of Protection may on occasion make a request to see these accounts. The level of accounting required will depend entirely upon the complexity of the donor’s financial affairs (see Code of Practice, para.7.67). 

Duty to keep the the donor’s money and property separate 

Attorneys acting under a property and affairs LPA must usually keep the the donor’s money in a separate account from their own. Where money is held jointly, between spouses for example, it should be possible for this to continue (see Code of Practice, para.7.68). 

 

Further Information

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