What is an attorney under a Lasting Power of Attorney (LPA)?

Attorney(s) are appointed by an individual (the 'donor') under a Lasting Power of Attorney to make decisions on their behalf.  Donors often choose a family member or close friend to act, though it can be anyone over 18 who the donor trusts and believes will be able to able to carry out the role (including, for financial matters, a Trust Corporation) 

The scope of an attorney's decision-making powers depends on the terms of the LPA.  The LPA will either cover decisions regarding the donor's health and welfare or decisions regarding their property and financial affairs.  It is common for donors to have both a health and welfare and a property and financial affairs LPA in place (though they do not need to appoint the same attorney(s) for both).  

LPAs are made on statutory forms which are signed by the donor, the attorneys and an independent person called a certificate provider who confirms that the donor understand the LPA.  Once  completed, the LPA must be registered with the Office of the Public Guardian (OPG) before it can be used.

Following registration, in the majority of cases, the attorney's decision-making powers come into effect once the donor has lost capacity to make decisions for themselves.  Attorneys for property and financial affairs may however be able to act before the donor loses capacity if the LPA states they can, and they do so with the donor's consent.   

There are strict rules which govern how an attorney must act and what they are able to do, for instance an attorney must keep records of all decisions they make on the donor's behalf, they must act in the donor's best interests, involve them in decisions as far as is possible (taking account of the donor's capacity and the steps that could be taken to help them understand) and keep the donor's money separate from money belonging to the attorney or others.  The core principles with which attorneys must comply are set out in the Mental Capacity Act 2005 and the gov.uk code of practice here.  The OPG also has a guide on the role of attorneys here.  There are matters which an attorney cannot unilaterally deal with – for example, making a will for the donor or most gifts from the donor's funds. In those instances, the attorney can apply to the Court of Protection for authorisation.   

Attorneys who do not act in accordance with their duties can be removed via an application to the Court of Protection and can be ordered to reimburse the donor for any loss they suffered as a result of the attorney's actions.  Cases of fraud or abuse by an attorney may also be referred to the police or relevant safeguarding authority.

Court of Protection FAQs