Introduction
The article explains the duties of an attorney for property and affairs under the Mental Capacity Act 2007.
This article should be read in conjunction with the other Net Lawman articles on Lasting Powers of Attorney. Links are available at the end this article.
This is not part of the ‘prescribed information’ that a donor must read before making the Lasting Power of Attorney, nor is it a pre-requisite for an attorney to read this, however, it is very much recommended.
What are my duties as an attorney?
There are three simple rules. You must:
- act in the best interests of the donor by considering their needs and wishes;
- not take advantage of the donor’s position to gain any benefit for yourself; and
- keep the donor’s money and property separate from your own and other peoples.
You have very limited powers to make gifts to yourself or others.
Do I have to keep accounts?
You have a duty to keep accurate accounts of your dealings. Of course as well as being a legal requirement, it is also sensible to keep them neatly and in good condition as you must be able to produce them at any time, if required by the Court of Protection (and or any personal representatives or executors of the donor’s estate after the donor’s death). The accounts should include a list of the donor’s:
- property;
- bank and building society accounts;
- other investments; and
- income and spending.
You must also keep documents relating to each, such as bank statements. If you cannot produce satisfactory accounts, the Court may cancel the LPA.
What do I do with LPA form?
First, tell everyone that needs to know about the LPA that it has been registered - this includes banks, the Benefits Agency, the Inland Revenue, pension schemes, nursing homes and so on. These organisations may then request you to complete one of their forms and send to them a certified or office copy of the registered LPA. Some may want the original, so it is a good idea to, when the LPA is first stamped, ask for certified copies from the Guardianship Office there and then.
Can I sell the donor’s house?
If this is in the donor’s best interests, and as long as there are no restrictions or conditions in the LPA which prevent it, yes. This might be necessary if the donor goes to live in a nursing home, or with family. You must be quite there is no reasonable chance that the donor will be able to return to live at home. You could explore other options, such as letting the property. You do not need approval from any organisation to do this, however, you must notify the Guardianship office, if for any reason:
- the sale is below the market value;
- you want to buy the property yourself; or,
- you want to give it to someone else
Can I make gifts?
You have limited powers to make gifts to yourself or others. You can make seasonal gifts (for example, Christmas presents),or gifts on occasions such as anniversaries, births or marriage to people who are related to or connected with the donor (including yourself).You can also donate to any charity the donor supported or might have been expected to support. But the value of any gift must be reasonable, particularly in relation to the value of everything the donor owns.
If you want to make larger gifts of money or property, perhaps as part of planning for Inheritance Tax, you must apply to the Court. The Court needs:
- Form EP3;
- a medical certificate which confirms that the donor is mentally
incapable; and,
- evidence, including sworn statements from you.
The Judicial Support Unit at the Court of Protection will provide further details.
Can I be paid or recover expenses?
Professional attorneys, such as solicitors or accountants, may charge. Other attorneys would not normally be paid but can recover reasonable expenses such as postage, stationery and the cost of phone calls. Seek advice about this from a solicitor – you can contact Expert Legal Advice at: http://www.expert-legal-advice.co.uk
Making a will
It is unlikely that most donors of registered LPAs could make a valid will or codicil (addition to a will) because of their mental status. However, if a doctor and a solicitor consider that the donor is mentally able to make a will, you do not need our permission for it to be drawn up and signed. Seek advice about this from a solicitor – you can contact Expert Legal Advice at: http://www.expert-legal-advice.co.uk
Nor can you yourself make a will for the donor, however, you can apply to the Court for a statutory will.
Can I stop acting as attorney?
Yes. This is called ‘disclaiming the power ’. If the LPA is registered, you should write to the guardianship office to let them know. You should provide a ‘Deed of disclaimer ’, which we can prepare for you at Net Lawman.
If there are just two attorneys and one wants to give up, the LPA can no longer be used. The donor’s affairs will have to be managed in another way.
If there are more than two attorneys and one wants to give up, the remaining attorneys can usually continue to act under the LPA, but they should tell the guardianship office about the change.
Cancelling an LPA for property and affairs
The Court can cancel or revoke the LPA if a successful application for cancellation is made. A donor can also end a registered LPA if the Court agrees and is satisfied that the donor is mentally able to make this decision. If the LPA is cancelled before it has been registered, the document required is a ‘deed of revocation’. Links to download the document are at the end of this article.
What happens when the donor dies?
The LPA will automatically end. Send the original LPA and the death certificate to the guardianship office as soon as possible. You will then need to contact a probate solicitor to help you to deal with the donor’s estate.
Useful Contacts
Public Guardianship Office
Archway Tower
2 Junction Road
London
N19 5SZ
(The Court of Protection is at the same address)
Relevant Documents:
Related information articles:
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