What Responsibilities Come with Acting as a Power of Attorney? Clear Duties and Legal Obligations Explained

When you act as a power of attorney, you take on an important legal role that comes with clear duties and responsibilities. Your main responsibility is to make decisions that protect the interests and wellbeing of the person who appointed you, always acting in their best interests. This means managing their money, property, or personal care with care and honesty.

You must follow the rules set out in the Lasting Power of Attorney (LPA) and any relevant laws, such as the Mental Capacity Act 2005. You should keep clear records, avoid conflicts of interest, and only make decisions that the person themselves would have wanted whenever possible.

Taking on this role is serious, and it requires thought and commitment. Knowing what is expected helps you act confidently and correctly, avoiding mistakes that could harm the person you are helping or get you into legal trouble. For more detailed information about your duties, you can visit Use a lasting power of attorney: Overview - GOV.UK.

Understanding the Power of Attorney Role

When you act as a power of attorney, you take on an important legal role that involves making decisions for someone else. This includes managing finances, health, or personal welfare. It is essential to understand the types of powers available, the legal framework, and the key terms involved to carry out your duties correctly.

Types of Powers of Attorney

There are different kinds of powers of attorney. The most common in the UK is the Lasting Power of Attorney (LPA). An LPA lets you make decisions for the donor if they lose mental capacity. It covers two types: property and financial affairs, and health and welfare.

A general power of attorney is temporary and ends if the donor loses mental capacity. You might also come across an enduring power of attorney, though this is now replaced by the LPA since October 2007.

Understanding which type applies is important because it affects your legal powers. An LPA must be registered with the Office of the Public Guardian before you can act.

Key Legal Concepts

Your powers and responsibilities as an attorney come from several laws, mainly the Mental Capacity Act 2005. This Act sets rules about when and how you can make decisions for the donor.

You must always act in the donor’s best interests. If the donor still has the ability to decide, you cannot override their wishes. The Court of Protection can get involved if there is any dispute or concern about your actions.

Mental capacity means the donor understands the decision to be made and its consequences. You only step in when someone lacks this capacity.

Terminology Explained

Some key terms you will hear often include:

• Donor: The person who gives you power to act for them.

• Attorney: You, the person granted the power.

• Office of the Public Guardian (OPG): The body that registers LPAs and oversees attorneys.

• Mental Capacity: The donor’s ability to make informed decisions.

• Court of Protection: The court that handles cases involving mental capacity and oversees attorney conduct.

Knowing these terms will help you understand your role and communicate clearly with professionals involved in the process.

Legal Responsibilities and Duties of an Attorney

When you act as an attorney under a Power of Attorney, you must carefully follow legal rules and put the donor’s needs first. You need to manage their affairs honestly, keep clear records, and respect their ability to make decisions unless it is clear they lack capacity.

Acting in the Donor’s Best Interests

Your main duty is to act in the donor’s best interests. This means you must consider what the donor wants, their values, and their past and present wishes. You should consult with family, friends, or professionals if needed, to make decisions that reflect the donor’s preferences.

You must avoid conflicts of interest and make decisions that protect the donor’s welfare and finances. Always prioritise their well-being over your own or others' benefits. Following the Mental Capacity Act 2005 helps guide you in making these choices properly.

Maintaining Accurate Financial Records

You are required to keep clear and detailed records of all financial transactions you carry out on behalf of the donor. This includes documents like bank statements, receipts, and invoices related to payments and expenses.

Accurate records protect you and the donor by showing transparency and accountability. The Office of the Public Guardian can request these records to check that you are managing the donor’s money responsibly, so you must keep them safe and organised.

Respecting the Donor’s Capacity

You must always assess and respect the donor’s mental capacity. If the donor can still make decisions, you should support and involve them as much as possible. Only step in to decide when they cannot understand or weigh up information related to a specific choice.

The Mental Capacity Act 2005 provides rules on how to assess capacity fairly and consistently. You should never assume incapacity without proper assessment, and always help the donor make decisions whenever they are able to.

Compliance with the Law

You must follow all legal responsibilities set out in the Power of Attorney document and relevant laws, including the Mental Capacity Act 2005. This includes not acting beyond your powers and ensuring you do not misuse the role.

If you act improperly, you can be held legally responsible. Only claim reasonable out-of-pocket expenses unless you are a professional attorney authorised to charge fees. Always act with care, honesty, and within the scope of your legal authority. For more detailed guidance, see responsibilities outlined by legal experts on acting as an attorney.

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Decision-Making Powers and Limitations

When you act as a Power of Attorney, you gain authority to make important decisions. Your powers can cover financial matters, health care, or both, depending on your role. However, your authority has limits set by law and the instructions in the document.

Property and Financial Affairs Decisions

If you are appointed as a property and financial affairs attorney, you can manage money, property, and financial matters. This includes paying bills, collecting income, and selling property if needed.

You must act in the best interests of the person who appointed you. Keep clear records of all transactions and avoid mixing your money with theirs. You cannot use their money for your benefit.

Your powers begin only when the LPA becomes active. You cannot make decisions before then. You also cannot make a statutory will unless specific authorisation exists.

More details about these duties are available on responsibilities regarding property and finance.

Health and Welfare Decisions

As a health and welfare attorney, your role focuses on decisions about medical care, day-to-day welfare, and living arrangements.

You can agree or refuse medical treatment, choose care homes, and decide about daily routines like meals and social activities. However, you cannot force medical treatment against legal advice or involve decisions about life-sustaining treatment unless the person lacks capacity and the document permits it.

Your decisions should follow any preferences the person has expressed when they had capacity. Always aim to promote their wellbeing.

Guidance on your health and welfare duties is explained in health and welfare responsibilities.

Making Difficult Decisions

Some choices you face may be especially challenging. This includes moving the person to a new home, agreeing to major medical procedures, or handling conflicts with family members.

You must consider the person’s past and present wishes carefully. It’s important to act reasonably and avoid decisions influenced by your own interests.

Keep in mind that you can be held legally responsible if you don’t act properly or fail to follow restrictions in the LPA.

If unsure, seek professional advice or use the Court of Protection to resolve disputes. This support helps handle complex or contested decisions.

Gifting and Charitable Donations

Making gifts or donations is a sensitive area. As a property and financial affairs attorney, you can make gifts only if the LPA specifically permits it or if they are considered reasonable on special occasions such as birthdays or holidays.

Large or unusual gifts require caution and should be clearly authorised to avoid abuse or claims of mismanagement.

Charitable donations are allowed if they fit within the person’s usual giving habits or the LPA gives permission. Always keep detailed records and act in good faith.

For more information about gifting limits, see limitations of lasting power of attorney.

Acting Jointly or Severally as an Attorney

When acting as an attorney under a Lasting Power of Attorney, you may need to decide how you and any other attorneys will make decisions. Your ability to act can depend on whether you are appointed to act jointly, severally, or jointly and severally. Each arrangement affects how decisions are made and how responsibilities are shared.

Joint and Several Responsibilities

If you are an attorney appointed jointly, you must make every decision together with the other attorneys. This means you cannot act alone—every choice requires agreement from all attorneys. This can slow decision-making but ensures that all voices are heard.

When appointed jointly and severally, you have more flexibility. You can make decisions on your own or with the others. This is useful if quick decisions are needed or if one attorney is unavailable.

If you are acting severally, you can make decisions independently, without consulting other attorneys. This often suits professionals or situations where fast actions are necessary.

Collaboration Among Attorneys

Regardless of the arrangement, communication is key. If you act jointly, you must discuss and reach consensus regularly. This can require patience and clear sharing of information.

With joint and several powers, collaboration is less strict but still important. You should keep each other informed to avoid conflicts and ensure consistent decisions.

Even when acting severally, you should consider the impact of your decisions on other attorneys and the donor’s best interests. Keeping clear records of your decisions helps maintain transparency.

Legal Consequences and Safeguards

When you act as an attorney, you must follow strict rules and keep detailed records. There are serious legal duties to meet, and certain organisations oversee your actions to make sure you act correctly.

Potential Legal Consequences

If you fail to act in the donor’s best interests, you may face legal action. You could be investigated by the Office of the Public Guardian (OPG), which monitors attorneys’ conduct. Misusing the donor’s money or assets can lead to criminal charges or civil penalties.

The Court of Protection can intervene if concerns arise. It can remove you as attorney or order you to repay lost money. You are legally obliged to follow the terms of the Lasting Power of Attorney (LPA) and act within the law at all times.

Being transparent and honest is essential. Breaching your legal duties not only puts the donor at risk but can also damage your reputation and lead to financial consequences.

Oversight and Reporting

You must keep accurate financial records detailing all transactions made on behalf of the donor. This includes receipts, bank statements, and explanations for spending. If requested, you must provide these records to the OPG or the court.

The OPG may ask for reports on how you manage the donor’s affairs. You might need to submit yearly accounts or respond to specific inquiries about your conduct as an attorney.

If concerns about your actions arise, the Court of Protection has the power to investigate. This includes reviewing your paperwork and interviewing you. Complying with these requirements is vital to maintaining trust and legal approval when acting under a Lasting Power of Attorney.

For more detailed guidance, see acting as an attorney under a lasting power of attorney explained here.

Frequently Asked Questions

Understanding your duties as an attorney involves knowing what decisions you can make and the limits on your power. You also need to be clear on how to register or stop a Power of Attorney, and what happens if you do not act correctly.

What are the core duties of someone acting under a Lasting Power of Attorney?

You must always act in the best interests of the person who gave you the Power of Attorney. You should follow any instructions they left and keep their records and finances separate.

You cannot use the Power for your own benefit. You must keep the person’s affairs private and only share information with people authorised to know.

How can a Power of Attorney be legally overridden or revoked?

A Power of Attorney can be revoked by the person who made it, as long as they have mental capacity. This must be done in writing.

If a court finds that the attorney is not acting properly, it can cancel the Power of Attorney. You can also stop acting if you give the correct notice.

What are the financial management responsibilities for a person with Power of Attorney?

You must manage the person’s money carefully and only spend it on their needs. This includes paying bills, managing bank accounts, and handling benefits.

You must keep clear and detailed records of all transactions. You may be asked to show these records to the court or other interested parties.

What steps should be taken to register a Power of Attorney in the UK?

Before you can act, the Power of Attorney must be registered with the Office of the Public Guardian. This involves submitting the correct forms and paying any fees.

Registration usually takes up to 10 weeks. You cannot use the Power of Attorney to make decisions until registration is complete.

Can a Power of Attorney make healthcare decisions, and what limits apply?

Yes, if the document allows, you can make health and care decisions. However, decisions must follow any specified preferences or guidance from the person.

You cannot refuse life-sustaining treatment unless the donor clearly authorised this in the document. You must consider medical advice and the person’s best interests.

What are the implications of handling a Power of Attorney incorrectly?

Misusing a Power of Attorney may lead to legal action, including court orders to repay money lost or criminal charges.

You could lose your position as an attorney and face penalties if you do not follow your duties properly. It is essential to act responsibly and keep good records at all times.

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