Here, Kathleen Gray, private client solicitor at our Margate office, explains your responsibilities as an LPA attorney, and answers some of the questions she is regularly asked.

The Mental Capacity Act 2005 and Code of Practice sets out strict rules and principles for an attorney to follow. An attorney must, amongst other principles, act in the donor’s best interest when making decisions (which may be different to their own interest), follow any conditions or restrictions included in the LPA and respect the donor’s confidentiality.

If I think the donor lacks capacity, what should I do?
As an attorney, you must presume the donor has capacity, unless it can be established that they lack capacity. It is also important to take all possible steps to try to help and support the person make a decision for themselves. The Code of Practice sets out what is meant by mental capacity and lack of mental capacity. If you are concerned, do speak with the person’s GP, or their local authority, or contact us for further guidance.

When can I act as attorney and what are my responsibilities?
You can only act as attorney for a donor once a Lasting Power of Attorney document has been completed, signed by all parties and registered with the Office of the Public Guardian.

As an attorney for finances and property it is advisable to retain clear and up to date records of accounts and receipts, and to keep their money and property separate to your own. Some LPA documents may include specific instructions and preferences set down by the donor and therefore it is also your responsibility to follow those.

Can I make gifts from the donor’s money?
Yes, but gifts can only be made in the following limited circumstances. The gift must be on a ‘customary occasion’ such as a birthday, a marriage or civil partnership or other occasions on which presents are given. The gifts may be made to people that are related to or connected with the donor, and these types of gifts can be made to an attorney. However, the value of each gift should be reasonable having regard to all the circumstances and in particular the size of the donor’s estate. Gifts can also be made to any charity to which the donor made or might have been expected to make gifts to.  An attorney who wishes to make larger gifts or gifts that are not on a customary occasion must apply to the court for authority to make the gift. A donor can, however, prevent all gifts by including this in the drafting of their LPA.

Can I invest the donor’s money?
Yes, you can make investments on behalf of the donor but again, in their best interests. However, investing does also require measured decisions and some limitations. You cannot do whatever you like with the donor’s money. It is sensible to contemplate the risks and returns when considering investments in such things as shares, precious metals and bonds. You must also consider the donor’s capital, life expectancy and the beneficiaries in their will.  One query that is often raised is the investment of the donor’s money to build an extension to the attorney’s property (usually their child) to assist in caring for their parent (the donor) at home. This type of decision would require the court’s permission and an application is something we can assist with. Most people do not possess the skills and expertise to invest without expert advice and guidance. Therefore, please do seek help from a financial advisor regulated by the Financial Conduct Authority or contact our private client team for further guidance.

Kathleen Gray can be contacted on 01843 234000 or by email for advice. Our usual approach is to have an initial no obligation phone call to explore your needs and circumstances.