Donors can impose specific restrictions and conditions for their attorneys in two situations: when assisting the donor in making decisions, and when making decisions on the donor's behalf if they are unable to do so, even with support.
Conditions convey general wishes that the donor would like the attorneys to honour if possible. Restrictions explicitly outline what attorneys must do when making or supporting decisions for the donor.
Responsibilities of an attorney
An attorney has a legal duty to act in the best interests of the donor and must adhere to the Mental Capacity Act code of practice and its five guiding principles.
An attorney must only make decisions that they have been given the authority to make. If the LPA requires decisions to be made jointly, the attorney cannot make decisions independently. Similarly, the attorney cannot make health and welfare decisions if the donor has the mental capacity to make those decisions themselves.
Attorneys must respect the type of LPA in place: a property and financial affairs attorney can only make financial decisions, while a health and welfare attorney can only make decisions related to health and welfare. However, many attorneys may hold both roles.
When it comes to decisions about life-sustaining treatment, it is crucial to ensure a health and welfare attorney is acting within their authorised powers. Attorneys should consider the donor’s past and present wishes and feelings, participating in broader best interests discussions, even if they do not have direct authority over a particular decision.
An attorney is required to keep the donor's funds separate from their own to prevent any commingling of assets. This ensures clear financial boundaries and accountability, protecting the donor's assets from potential misuse or confusion with the attorney's personal finances. This separation is crucial for maintaining transparency, facilitating accurate record-keeping, and upholding the fiduciary duty that the attorney owes to the donor.
If an attorney exceeds their authority or neglects the donor's best interests, they must be reported to the OPG. The OPG will investigate and, if needed, can petition the Court of Protection to remove the attorney.
Using the LPA
Once the LPA has been registered with the OPG, it can then be sent to third parties to be used. When sending a paper version of the LPA, providers typically prefer to receive the original document to ensure authenticity. However, considering the importance of the document, many clients may understandably hesitate to send it via postal mail.
If a photocopy of the original is sent, there are stringent regulations governing the certification of copies of LPAs, outlined in Section 3 of the Powers of Attorney Act 1971.
