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What can an Attorney do

What can the Donor actually do

A donor act in the best interests of the person they are making decisions for. They have to follow the mental capacity act code of practice. In particular Chapter 7 from the code of practice. They also have fiduciary duties, that is ways or responsibilities how they should make decisions.

 

Property and Affairs Lasting Powers of Attorney 

Codes of Practice 7.36 says

If a donor does not restrict decisions the attorney can make, the 

attorney will be able to decide on any or all of the person’s property 

and financial affairs. This might include: 

  • Buying or selling property 
  • Opening, closing or operating any bank, building society or other account 
  • Giving access to the donor’s financial information 
  • Claiming, receiving and using (on the donor’s behalf) all benefits, pensions, allowances and rebates (unless the Department for Work and Pensions has already appointed someone and everyone is happy for this to continue) 
  • Receiving any income, inheritance or other entitlement on behalf of the donor 
  • Dealing with the donor’s tax affairs 
  • Paying the donor’s mortgage, rent and household expenses 
  • Insuring, maintaining and repairing the donor’s property 
  • Investing the donor’s savings 
  • Making limited gifts on the donor’s behalf
  • Paying for private medical care and residential care or nursing home fees 
  • Applying for any entitlement to funding for NHS care, social care or adaptations 
  • Using the donor’s money to buy a vehicle or any equipment or other help they need 
  • Repaying interest and capital on any loan taken out by the donor. 

Points to think about

Who owns the assets and does the Donor have exclusive right over them and what happens to them.

Has the Donor granted authority to anyone else to manage the assets, and does this now clash with the LPA authority.

Will the restrictions and conditions actually work in reality.

Has the Donor left out any assets he does not want subject to the LPA and if so why.

If the LPA is restricted to only becoming usable once registered, and the Donor does not want to register it straight away. Are they aware there will be a 5/6 week gap before the LPA can be used. During this registration period, the Attorney(s) may only maintain the Donor as they are, not make large decisions.  

Are there any other documents – wills, trusts, insurances etc which may influence or affect how the LPA operates.

Gifts under the LPA are usually restricted to small amounts, if the Donor wishes to extend (or further limit) these, this needs to be clear on the LPA. 

 

Personal and Welfare Lasting Powers of Attorney 

Codes of Practice 7.21 says

LPAs can be used to appoint attorneys to make decisions about 

personal welfare, which can include healthcare and medical treatment 

decisions. Personal welfare LPAs might include decisions about:

  • Where the donor should live and who they should live with
  • The donor’s day-to-day care, including diet and dress 
  • Who the donor may have contact with 
  • Consenting to or refusing medical examination and treatment on the 
  • donor’s behalf 
  • Arrangements needed for the donor to be given medical, dental or 
  • optical treatment 
  • Assessments for and provision of community care services 
  • Whether the donor should take part in social activities, leisure 
  • activities, education or training 
  • The donor’s personal correspondence and papers 
  • Rights of access to personal information about the donor, or 
  • Complaints about the donor’s care or treatment. 

 

Points to think about

Has the Donor chosen either Option A or B, and signed and had this witnessed. 

It can be worth asking why either one of these was chosen, as restrictions, conditions or guidance may be suitable. 

Does a separate authority granting access to medical information need to be drafted – it is not usually needed, but worth considering. 

Has the Donor made any mention about end of life issues, funeral arrangements, organ donation or other similar matters. 

Life sustaining refusal is not euthanasia.

Has the Donor made a Living Will or Advance Decision. The Advance Decision needs to be check as this may clash with the LPA. (See section on which takes precedence).  

 

The Textbook - Lasting Powers of Attorney

Craig Ward of Lundie MSc one of our Partners wrote the Law Society’s textbook on Lasting Powers of Attorney from 2016 to 2019 now in its 4th edition. This means Craybeck Law has the countries leading expert on hand to advise you about making your Lasting Power of Attorney

 

Further Information

 

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