How to be a good attorney

Attorneys for property and financial affairs lasting powers of attorney (LPA) may be unsure which way to turn when they start using the document.

Typically LPAs are created by people looking ahead to a time when perhaps they cannot manage their affairs because of mental or physical incapacity. The attorney has specific legal obligations to the donor (whose LPA it is) which can arise at a difficult time especially if the donor is a loved one who has lost mental capacity.

An attorney must have regard to the code of practice under the Mental Capacity Act 2005 and must always act in the donor’s “best interests”, but that is not as simple as it initially sounds. They need to consider the donor’s past and present wishes, their feelings, beliefs and values.

Where practical and appropriate, an attorney should consult with anyone caring for the donor, close relatives and anyone else with an interest in their welfare as well as the other attorneys appointed by the donor.

The attorney must check whether the donor has capacity to make a particular decision and can only act if the donor does not have the capacity, unless they have instructed an attorney specifically to make that decision for them and they have the necessary capacity to give that instruction.

The powers of an attorney are wide (unless restricted in the LPA) and include among them

• buying or selling property
• opening, closing or operating any bank, building society or other account
• giving access to the donor’s financial information
• receiving any income, inheritance or other entitlement on the donor’s behalf
• dealing with the donor’s tax affairs
• dealing with the donor’s investments and savings
• using the donor’s money to buy a vehicle or any equipment or other help they may need.

The attorney has many duties to follow not least a duty of care to the donor to act in good faith and not to use the power to benefit themselves.