Decisions an Attorney can make under an LPA
If you have been appointed as Attorney under a Lasting Power of Attorney and are a close family relative, you will already know much about the Donor’s (the person making the LPA) past and present wishes, feelings or any beliefs and values. An LPA can come into force if whilst the donor has capacity and gives you permission to act (and the LPA says that you can), otherwise decisions can only be made on the Donor’s behalf if they do not have mental capacity. It is important to ensure that you have discussed plans for their money or how they want to be looked after if they fall ill; because, as Attorney, you will be making decisions in the Donor’s Best Interests.
However, your powers as Attorney are limited, for example: an application to the Court of Protection needs to be made if you intend to give a significant gift – for example, paying someone’s school or university fees or an interest free loan; or, in relation to the donor’s property – letting someone live in the property without paying rent – as it is rarely in the Donor’s Best Interests for these decisions to be made. If a Donor has concerns about the limitations on the Attorney’s powers, then they may wish to include wording in the LPA when creating it to widen the basic powers, or at least give an indication that they would not be against the use of those wider powers, as this may assist an Attorney with an application to the Court of Protection.
In addition, you are advised to seek legal advice if, for example, you intend selling the Donor’s property at below the market value, you want to buy the property yourself or you are giving it to someone else.
It is worth noting that while a Donor may have appointed an Attorney, if they have not made a Will while they have capacity, you can apply to the Court of Protection to make a Statutory Will. This is also possible if there is a Will which needs to be updated.
The Government website provides some basic information and Barker Gotelee can offer tailored advice and assistance relevant to your particular circumstances.
Please contact our Private Client Team for guidance, advice or assistance relating to Wills, LPAs and Deputyships.
