If you’ve ever considered putting a Lasting Power of Attorney (LPA) in place, you’re probably aware that it involves giving someone the legal authority to make decisions on your behalf should you ever be unable to do so yourself. But what does that really mean in practice for your appointed Attorney? And what do they need to keep in mind to ensure they’re acting in your best interests?
Let’s break it down in a simple and straightforward way.
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What Is an LPA and Why Is It Important?
A Lasting Power of Attorney is a legal document that allows someone (your “Attorney”) to make decisions on your behalf (the ‘’Donor) if you lose the ability to make those decisions yourself. There are two types of LPAs: one for property and financial affairs, and another for health and welfare decisions.
Your Attorney could be a family member, friend, or trusted professional, but whoever it is, they must follow a set of duties, ensuring that they act in a way that reflects your preferences, beliefs, and values.
For further information and a detailed explanation of the two types of LPAs, check out our comprehensive LPA guide.
Attorney Duties and The Mental Capacity Act 2005: It’s All About You
The law says your Attorney must always act in your best interests. They can’t just make decisions based on their own whims or convenience – it’s your life, your choices, your priorities. So, what exactly does “acting in your best interests” mean?
- Acting According to Your Preferences
Your Attorney should do everything they can to help you make decisions. If you’re still able to decide some things for yourself, they should be helping you do so, not taking over just because they feel like it. If you’ve already stated your preferences – either in your LPA or elsewhere – they must consider these and use them to guide their decisions. Whether it’s personal, political, cultural, moral, or religious views, your values matter. - Taking Time to Understand Your Wishes
If you have specific preferences, your Attorney should listen – really listen. They need to understand your views and feelings, whether it’s directly from you or from how you’ve expressed yourself before. If you’re someone who has trouble expressing yourself verbally, they may need to consider non-verbal cues, like body language or written instructions. - Helping You Make Your Own Decisions
The Mental Capacity Act 2005 states that anyone making decisions for you must first help you make decisions on your own as much as possible. Your Attorney should provide as much assistance as you need, whether it’s ensuring you have time to make decisions at your clearest moments, such as in the morning, or offering support using pictures or sign language if that’s how you communicate best. Your Attorney’s role is to enable you to make your own choices wherever possible. - Avoiding Assumptions
Just because someone makes an “unwise” decision doesn’t mean they lack capacity. The law explicitly says that making a decision that others consider “eccentric” (you know, like that time you insisted on wearing a pineapple hat to a wedding) doesn’t mean someone is incapable of making decisions. Your Attorney cannot judge you for making a quirky choice. - Choosing the Least Restrictive Option
When making decisions on your behalf, the Attorney should consider all options and pick the one that’s least restrictive of your rights and freedoms. If one option takes away your freedom more than others, then they should avoid it.
For more information and an in-depth explanation of mental capacity, be sure to explore our comprehensive Capacity Guide.
Financial and Care Responsibilities in an LPA
If your Lasting Power of Attorney (LPA) covers financial matters, your Attorney has a duty to act responsibly and transparently. They must keep your money separate from their own and maintain clear, detailed accounts of how it is managed. Every transaction should be recorded, and if you’d like regular updates on your financial situation, your Attorney must provide them. These reports can also be shared with a solicitor or trusted family member if you choose.
Beyond managing your finances, your Attorney is also responsible for documenting decisions related to your healthcare, including medical appointments and any actions taken under the authority of the LPA. Their record-keeping duties may include:
- Tracking income, expenses, and financial decisions
- Logging medical consultations and treatment choices
- Recording daily care routines and living arrangements
It’s crucial that your Attorney never uses their position for personal gain. All decisions should be made with your best interests in mind, free from conflicts or self-interest.
Revoking Your LPA
If you feel that your Attorney is not fulfilling their duties or acting in line with your best interests, you or your family can contact the Office of the Public Guardian for support. It’s important to ensure transparency in these situations.
You also have the right to revoke your LPA at any time if you believe your Attorney is not acting according to your wishes. After all, it’s your life, and you should maintain control over your decisions. Just make sure to formally document the revocation to ensure everything is legally clear and recognised.
In Conclusion: The Bottom Line for Attorneys
Your LPA Attorney has a serious job, but they also have clear guidelines to follow to ensure they’re acting in your best interests. From helping you make decisions, understanding your values, and minimising restrictions on your rights to keeping accurate records and consulting with family members, their role is built on trust and respect for your wishes.
If your Attorney ever fails to act properly, don’t hesitate to revoke their authority or contact the Office of the Public Guardian. It’s all about ensuring you’re treated with dignity, care, and respect – always.
Remember, your Attorney isn’t a superhero, but they do need to be your super-trustee in the world of legal decision-making. So choose wisely, and if you ever have doubts, consult a solicitor. It’s better to get advice now than wish you had later!
Contact our Wills and Lasting Power of Attorney Solicitors in London
Our Private Client Team is here to help you with all aspects of estate planning, including Lasting Powers of Attorney. Whether you’re looking to appoint trusted Attorneys, define your preferences and instructions, or ensure your wishes are clearly communicated, we’re here to guide you every step of the way.
We can assist with:
- Discussing and selecting the right Attorneys for your LPA
- Ensuring your personal preferences, values, and instructions are incorporated into your LPA
- Sending letters to your appointed Attorneys to clearly outline their roles and duties
- Navigating health and welfare decisions with care
- Safeguarding your estate for future generations
- Ensuring your wishes are respected and upheld
📞 Contact Rose Varsani on: 0207 387 2032
📧 Or email: pvarsani@lewisnedas.co.uk
Disclaimer:
This blog is for general information and interest only. It does not provide legal advice and should not be relied upon as such. If you’d like tailored legal guidance, please contact us directly.