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The duties of an attorney

Coronavirus is causing more and more people to focus on putting their legal affairs in order which includes making Lasting Powers of Attorney. However, what are your duties and responsibilities as an attorney to the Donor (the person who makes the Power of Attorney)? 

It is correct to say that an attorney has many duties when acting for a Donor. These include the following:-

  1. An attorney is under a duty of care. They have to apply the same skill and care dealing with the Donor’s affairs as they would to make decisions effecting their own affairs. 
  2. An attorney must always act in the Donor’s best interest. They need to encourage the Donor to participate in making decisions where possible. The attorney has to consider the Donor’s past and present wishes and feelings and consider the views of the people closest to them. 
  3. There is a duty of no conflict. This means that the attorney must not put himself in a position where there may be a potential conflict between his own personal interest and that of the Donors. 
  4. There is a duty to make no profit. The attorney must not receive any unauthorised profit or benefit from any transaction they engage in on behalf of the attorney. 
  5. There is a duty of confidentially. The attorney is obliged to keep the Donor’s affairs confidential. The Donor’s matters are private and the attorney must not disclose confidential information to others unless necessary. 
  6. Duty to maintain and keep accounts. An attorney must keep details of all transactions and they should keep receipts. 
  7. Duty to keep assets separate from your own. An attorney must not mix their assets with those of the Donor. They need to keep them entirely separate and apart. 
  8. Duty not to delegate. An attorney is under a duty not to delegate their decision making to anyone else unless the Lasting Power of Attorney specifically authorises it. Sometimes it is appropriate however for an attorney to delegate to a financial adviser or bank, decisions regarding the aking of investments. However, this is only possible if this is specifically authorised in the Financial Lasting Power of Attorney. We have a standard clause which enables delegation of such investment decisions. 
  9. Duty of good faith. The attorney must always act honestly and conscientiously and in good faith. 
  10. What can an attorney not do?
    • An attorney can’t sign a Donor’s will. They only have a very limited ability to make gifts on behalf of the Donor. Unless the Power of Attorney says otherwise, an attorney can only make a gift if it is either to a family member, friend or acquaintance of the person on a “customary occasion” or to a charity. In both cases, it is essential the gift is of reasonable value given the size of the person’s estate (all the money and property they own). It is not possible to make the gift for the purposes of saving the Donor’s estate when they die, from inheritance tax. Furthermore, an attorney cannot give the Donor’s property away as gifts, or spend their money on gifts to avoid contributing to care home costs. This would be regarded as “deprivation of assets”.
    • An attorney must also make sure that they do not exceed their authority under the Power of Attorney. For instance, an attorney cannot make decisions about the Donor’s personal care under an Enduring Power of Attorney or a Financial Lasting Power of Attorney. For the attorney to be able to make decisions about health and welfare issues, they would also need to be the Donor’s attorney under a Health and Welfare Power of Attorney.

If you require advice on setting up and registering a Lasting Power of Attorney or in respect of advice on your duties as an attorney, please contact our Lasting Power of Attorney experts on 0113 218 5497.

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