Selection of Attorneys
You can choose anyone you trust to act as your Attorney provided they are over 18, sober and not bankrupt when they sign the LPA form.
You can appoint more than one person to act. You can also appoint replacement Attorneys.
If you appoint more than one person, you can choose whether they can act together (jointly), or together and independently (jointly and severally). You can state that your Attorneys must act together for some decisions but for others they can act independently.
Your Attorney must follow the principles set out in the MCA 2005 when they are making decisions or acting on your behalf.
Those principles are:
- Every adult has the right to make his or her own decisions and must be assumed to have the capacity to do so unless it can be proven otherwise.
- A person must be given all the help practicable before anyone concludes that he or she cannot make his or her own decisions.
- A person retains the right to make what might be seen as an eccentric or unwise decision.
- Anything done for, or on behalf of, a person who lacks capacity must be in his or her best interests.
- Anything done for, or on behalf of, a person lacking mental capacity should be the least restrictive option taking their basic rights and freedoms into consideration.
Attorneys' Duties
ο To act in accordance with the Act’s principles.
ο In particular, to act or make decisions in the donor’s best interests.
ο To have regard to the guidance in the Code of Practice.
ο To act only within the scope of your authority as Attorneys.
ο To take due care when making decisions on behalf of the donor.
ο To carry out instructions as required by the LPA.
ο Not to delegate the powers given to them under the LPA unless authorised to do so.
ο Not to benefit themselves but to benefit the donor.
ο To act in good faith, which means to act with honesty and integrity.
ο Confidentiality – to keep the donor’s affairs confidential unless the Donor has consented otherwise.
ο To comply with the directions of the Court of Protection.
ο Not to give up the role without telling the donor and the Court.
ο To keep the donor’s money and property separate from their own.
ο When considering whether to make gifts from the donor’s assets, to bear in mind the restrictions in section 12 of the Mental Capacity Act 2005.
This permits only such gifts which are made on “customary occasions” (birth/birthday gifts, wedding/civil partnership or anniversary gifts, or (for example) Christmas presents) to persons related to or connected with the donor, or in the case of charitable giving, gifts to “any charity to whom the donor made, or might have been expected to make, gifts”.
In all cases the value of the gift must not be unreasonable having regard to all the circumstances and, in particular, the size of the donor’s estate; and to keep accurate accounts of all dealings.
A person can refuse to act as Attorney but if they agree to take on the responsibility, they immediately become subject to the duties of an Attorney. Failure to comply could mean the LPA is cancelled and in some cases, the Attorney may be found civilly or criminally liable for fraud or negligence.
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