This Dementia Awareness Week, we are looking at: what the duties and responsibilities of my Attorneys are under Lasting Powers of Attorney, and how will they know my wishes?
Creating Lasting Powers of Attorney (LPAs) and giving those powers to trusted individuals may feel like a daunting decision to make. However, it is a significant step in safeguarding your future. Equally, being appointed an Attorney is an important role. It is key to consider whether your attorneys know your wishes in terms of both financial and health and welfare decisions, as your attorneys are responsible for implementing these decisions and have a number of responsibilities to keep in mind.
Donor’s wishes
When drafting LPAs, you have the opportunity to provide instructions and preferences to your attorneys as to how they should deal with your assets or in relation to your care. There are a number of scenarios where it will be sensible to provide your attorneys with detailed directions in order to act in your best interests. For example, you may wish to receive at home care as opposed to being moved to a care home. You may also wish for your attorneys to not sell your home.
It is very important to think about all your assets, whether they be physical or digital. Whilst the modern world develops and technology is more widely used, it is vital to ensure that no asset is off limits to your attorney. This is particularly prevalent where the Property (Digital Assets etc) Act 2025 has come into force and now considers crypto-assets as property. If any such assets are needed to provide care or maintenance, you should make sure these are available to your attorneys.
There are a number of benefits to using a specialist lawyer to draft your LPAs. Having these open discussions allows our trusted advisors to create LPAs which are bespoke to your circumstances and preferences. This means your attorneys can act in your best interest in carrying out your wishes when you are unable.
Our advisers are also on hand to discuss choosing the right people to appoint as your attorneys; whether they may encounter any difficulties, whether they are appropriate to act, and, most importantly, whether you trust them.
There is a common misconception that your spouse or family are entitled to deal with your assets or make care decisions, simply because they are a relative. Unfortunately, this is not the case and so it is key to ensure you provide people with the power to do so. It is therefore essential that people take the steps to creating LPA’s, particularly whilst they have capacity.
Attorney’s Details
Being an attorney on behalf of someone who lacks capacity to make their own decisions can often feel like an intimidating task. As an attorney, you need to understand the scope of your authority, your duties and responsibilities and be able to navigate practical decision making. Having discussions with the donor at the time of making their LPA could help to alleviate any concerns you have about making the right decisions, if and when the time comes.
The role of an attorney is governed by the Mental Capacity Act 2005 and its Code of Practice – which is a useful starting point for any prospective attorney who wants to understand what is expected of them from a legal perspective.
An attorney must act in the best interests of the donor, considering their past and present wishes and supporting the donor to make decisions wherever possible. Attorneys must act within the scope of the LPA and keep detailed records. In cases where an attorney can make decisions about the donor’s finances, they must not personally benefit from their position (other than permitted expenses) and should keep the donor’s money separate from their own. For health and welfare attorneys, they can only make decisions once the donor has lost capacity to make a certain decision themselves.
Capacity is not always straightforward. It can fluctuate and be decision and time specific. The starting point is a presumption that the donor has capacity unless it is established otherwise. Where capacity fluctuates, an attorney might want to defer non-urgent decisions to a time when the donor may have capacity. Just because a donor might make an unwise decision, it does not mean they lack capacity to make decisions. A donor should be assessed by a healthcare professional or a capacity expert to determine the extent of their capacity to make specific decisions.
Attorneys will encounter a spectrum of decisions. Smaller, routine matters such as paying household bills, arranging day to day care support or buying groceries or clothes generally involve a very limited risk so will not need the same consideration as bigger decisions would. Bigger decisions could likely include selling the donor’s home, changing investment strategies, making gifts, preparing a Will, changing the donor’s care setting or consenting to serious medical treatment. These decisions require much more consideration and might even require an application to the Court of Protection.
Where multiple attorneys are appointed jointly, all must act together; if appointed jointly and severally, the attorneys may act independently of each other. It is good practice to consult with your co-attorney and coordinate any decisions or actions being taken. If concerns arise as to how your co-attorney is exercising their powers under the LPA, perhaps by overstepping their authority or failing to keep clear records, it is advisable to take legal advice as soon as possible to prevent any potential harm.