LPAs – A guide to attorneys
What is an attorney? How many attorneys does an LPA need? What can an attorney do under an LPA?
This article provides an outline of the important questions and information concerning attorneys, to help you make the most of your LPA and choose the right people to look after your interests.
An LPA is a legal document which allows you (“the donor”) to appoint one or more people (your “attorneys”) to help you make decisions or to make decisions on your behalf.
In this article, we provide an overview of the important role of an attorney in ensuring the donor is effectively protected under the LPA.
What is an attorney?
Your attorneys are chosen by you to act on your behalf when you no longer have the mental capacity to act. Whilst attorneys can make some decisions on your behalf, they cannot do as they please.
They must always act in your best interests and must follow the basic principles outlined in the Mental Capacity Act Code of Practice when considering whether and how to act on your behalf. Your attorneys must:
• assume that you can make your own decisions unless it is established that you cannot do so.
• help you to make as many of your own decisions as you can.
• take all practical steps to help you to make a decision.
• not treat you as unable to make a decision merely because you make an unwise decision.
• act and make decisions in your best interests when you are unable to make a decision.
Before your attorneys make a decision or act for you, they must consider whether they can make the decision or act in a way that is less restrictive of your rights and freedoms, but still achieves the purpose.
How many attorneys can you have?
You must appoint at least one attorney in your LPA. Whilst there is no maximum limit on attorneys, too many attorneys can potentially make things difficult as your attorneys must work together.
Who can be an attorney?
An attorney must be over 18 years of age and have mental capacity.
Whilst you can choose a professional, there are no professional or other qualifications required to be an attorney. Most people chose a family member to their attorney, including a spouse, partner, family member, close friend.
The important requirement is that, whomever you choose, you and your attorney(s) know each other well and they respect your views and you trust them to act in your best interests.
Who cannot be an attorney?
If a person is currently bankrupt or has a debt relief order against them, they cannot be an attorney on an LPA for financial decisions. However, they can still be an attorney on your health and welfare LPA.
The barred list is maintained by the Disclosure and Barring Service (DBS). This keeps a record of people who are not permitted to work in a regulated activity with children and/or vulnerable adults.
It is a criminal offence for a person to work with a group from which they have been barred. As such, someone on the barred list cannot be an attorney – unless they are a family member and not getting a fee for being your attorney.
What can attorneys do?
Your attorneys have the ability to only make decisions that you have allowed them to make in your LPA. So, your financial LPA only permits your attorney(s) to make decisions relating to your finances, and your health and welfare LPA only allows your attorney(s) to make decisions about health and care, and not about your finances.
When can attorneys act on your behalf?
This question only applies to the financial LPA, as your health and welfare attorneys can only act when you have lost mental capacity.
However, there is a choice as to when your attorneys can start to act on your behalf in the financial LPA.
In Section 5 of the financial LPA, you can elect to have your attorneys start acting on your behalf as soon as the LPA is registered. This is applicable if you want your attorneys to make decisions on your behalf, even when you still have mental capacity.
This is useful if you are unable to leave your house or find it difficult to talk with your electricity or utility supplier. Your attorneys can then act on your behalf. Your attorneys can also talk with your and pay bills, and even act on your behalf if you are away, such as on holiday.
Alternatively, you can choose that your attorneys can only act on your behalf only if you lose mental capacity. In this case, banks and other financial institutions often want written confirmation that a donor does not have mental capacity before they will recognise an attorney’s authority to act under the LPA.
You can ask the donor’s GP, care co-ordinator, social worker or care home staff about a mental capacity assessment. We work closely with a team of leading experts in Mental Capacity Assessments. You can contact us to find out how we can help you.
When can attorneys no longer act?
Your attorneys cannot act for you if they:
• lose mental capacity themselves
• decide they do not want to act as your attorney anymore (called ‘disclaiming their appointment’)
• become bankrupt or subject to a debt relief order (provided they were an attorney under a financial LPA)
• were your wife, husband or civil partner but your relationship has legally ended.
If an attorney dies or can no longer act for any of the above reasons, your LPA may cease to work. This can happen if you have only appointed one attorney or if you have stated that your attorneys must act ‘jointly’ for some or all decisions.
For these reasons, it is important to consider appointing replacement attorneys.
If you cancel your LPA, then your attorneys can no longer act on your behalf.