Attorneys & Deputies: Are you aware of your obligations?
So you have been granted a Lasting Power of Attorney (LPA) or appointed as a Deputy on behalf of someone who is incapable of managing their own affairs, often known as “P” (for Patient). But are you aware of what you can and cannot do in this capacity?
It is common that people over-estimate or simply misunderstand what the LPA / Deputyship order allows them to do, and many may unwittingly overstep their powers. The following are some key points that Attorneys and Deputies need to be aware of:
Task-specific capacity
A fundamental principle of the Mental Capacity Act 2005 (MCA) is that a person must be assumed to have capacity unless it is established that they lack capacity.
There is no such thing as blanket incapacity, which means that just because someone cannot make complex decisions about how to invest their money for example, does not mean that they are incapable of making decisions about some other, simpler matters. As an attorney or deputy you should always consider whether you can help P to make the decision themselves before moving on to making the decision for them.
“Best interests” principle
Under the MCA 2005 any act you do or decision you make on behalf of P must be in their best interests. This may seem straightforward enough, but there will of course be times when it is not completely clear what is in P’s best interests.
Things that you cannot do as an Attorney or Deputy
- Make large gifts out of P’s property, even if you believe that P would want you to do so, for example because it is to P’s child to help them to set up a business.
- Make tax-planning moves with P’s property, even if you believe that this is in P’s best interests
- Make or change a Will on behalf of P
- You may not be able to sell P’s property if it is jointly owned with another person
In order to do any of these things you may need to make an application to the Court of Protection for authority to do so.
Confused or need help?
Our specialist Long Term & Elderly Care team at Gregg Latchams can advise and assist you with matters such as exercising your powers appropriately, long term care decisions and making applications to the Court of Protection. Being an Attorney or a Deputy is a big responsibility and it is okay to ask for help.
