When a person (known as the donor) makes a lasting power of attorney he/she appoints one or more individuals to make decisions on their behalf. Such individuals are known as attorneys and must be 18 years or older.
Attorneys make decisions about financial and/or health matters on behalf of the donor at a time when the donor is unable to make such decisions themselves. If there is more than one attorney then they must be appointed either:
- jointly and severally or separately or together meaning the attorneys can make decisions either together or individually;
- jointly or together meaning that all your attorneys must all agree on the decision being made.
The donor can also provide that the attorneys must make some decisions jointly and others jointly and severally. Such instructions require careful drafting and as such a solicitor is recommended to avoid problems further down the line.
Financial affairs attorneys are responsible for managing things like the donor’s money and bills, bank and building society accounts, property/investments, pensions and benefits. Health and welfare attorneys can be responsible for the donor’s daily routine; washing, dressing and diet, medical care, consent issues concerning life sustaining treatment and living arrangements such as whether the donor lives at home or moves into a care home.
Any decision that an attorney may make must be in the donor’s best interests. The Attorney must keep the donor’s finances separate from their own unless they have a joint account or home together. If this is the case, the bank and mortgage company must be informed of the position. In such cases the arrangement may result in a conflict of interest and as such legal advice should be sought before the lasting power of attorney is created.
The attorney must keep records and accounts of the donor’s assets, income, spending and outgoings. The Office of the Public Guardian and the court of protection can ask to check these at any time. An attorney can be prosecuted if he/she misuses the donor’s money and property.
An attorney can not be paid for acting as an attorney unless the donor has stated in the lasting power of attorney that the attorney can receive payment. Individuals who are bankrupt or subject to a debt relief order can not be appointed as a property and financial affairs lasting power of attorney.
A replacement attorney can also be chosen to step in if one of the original attorneys have died or can no longer make decisions on the donor’s behalf.
For anything further, one of our specialists would be delighted to meet you either in our office or in your own home to talk through your requirements and answer any questions. Please contact us at any time.