Taking on the responsibility of looking after the property and financial affairs for a friend or relative is an act of generosity. Helping (often older) friends and relatives who have helped you in younger years can be a way of showing appreciation. We are often contacted by Attorneys who are unsure of whether they are allowed to take a particular course of action or what they should be considering when acting as an Attorney. Here are a few things that Attorneys need to bear in mind.
The law that governs Lasting Powers of Attorney (LPA) is the Mental Capacity Act of 2005. It requires that people who are acting as Attorneys must take all reasonable steps to help the person who appointed them to reach their own decisions. This might involve using written communication if the Donor of the power is hearing impaired or not overloading the Donor with complex details if they find it hard to concentrate for long periods of time.
The most common area causing problems for Attorneys is making gifts using the Donor’s property. The law allows for regular or seasonal gifts to be made to people the Donor has always given to. The gifts must be a similar size to previous ones. You might call this the birthday exemption. Any other gifts require an application to the Court of Protection for permission of the Court. If the Donor asks an Attorney to make other gifts on their behalf then the attorney should take care to get a medical opinion on the Donor’s capacity and keep a clear record of the discussions that take place.
The Donor can include guidance in the LPA to say they would like their Attorney to make gifts over and above the birthday exemption but this is only likely to be persuasive to the Court of Protection and an application would still have to be made. Similarly, if an Attorney is selling property for a Donor and they either want to buy it themselves or sell it to a family member then they must get the permission of the Court of Protection, even if they are paying the market rate. Any sale to anyone at less than market rate also requires the permission of the Court.
Attorneys are entitled to reclaim out of pocket expenses. However, these are strictly limited to money spent on acting. If you buy a new computer and use it to keep records as an Attorney but also for your personal affairs then you cannot claim any part of the cost. You can use the Donor’s money to take legal, financial and accounting advice but this must be proportionate to the Donor’s assets. Attorneys cannot be paid for acting unless they are specifically authorised to do so in the Lasting Power of Attorney.
At Burnetts we can offer advice and guidance to Attorneys appointed under Lasting Powers of Attorney as well as those thinking of creating Lasting Powers. Contact one of our specialists and we will be happy to guide you through the process. You can email firstname.lastname@example.org or phone 01228 552222