Acting as a Financial Attorney?

Following a diagnosis of dementia, lots of people will be encourage to ensure they have put plans in place for their future.

This may include appointing someone else (an ‘Attorney’) to manage their finances on their behalf under an Enduring Power of Attorney (EPA) or a Property and Financial Affairs Lasting Power of Attorney (LPA).

If you have been appointed as a financial Attorney, the person who made the EPA or LPA (the ‘Donor’) trusts you to make decisions for them if they lose mental capacity and may wish you to help them now.

What does a property and affairs Attorney do?

As a financial Attorney, you are responsible for helping to manage or managing the Donor’s bank accounts, property and investments, bills and benefits.

Before you start acting, you should check that the Donor want you to act and check the EPA or LPA. The EPA or LPA may specify whether you have to act with other Attorneys, any restrictions on what you can do and instructions and guidance from the Donor as to how you should act.

Attorney duties

Attorneys have certain duties they must undertake, under law and best practice, to ensure they are managing the Donor’s finances in the Donor’s best interests.

As an Attorney you must understand and abide by the principles of the Mental Capacity Act 2005 and must not take advantage of or benefit as a result of your position as Attorney. It is also very important for you to keep the Donor’s finances separate from your own and keep records of the Donor’s finances and important decisions you have made.

As an Attorney under an EPA you also have the responsibility to register the EPA when the Donor no longer has capacity to manage their own affairs.

Potential pitfalls for Attorneys

The most common issue for Attorneys, is not understanding their duties. This is no excuse.

Areas where Attorneys can struggle include not seeking the relevant expertise or making appropriate investment provisions when dealing with complex assets and making welfare decisions for the Donor (financial Attorneys do not have authority to make welfare decisions).

Gifting can also be problematic. Whilst Attorneys can make small gifts under their authority there are strict limits on gift-giving that Attorneys must abide by. Gifts are not limited to money or items but can also include living in property owned by the Donor rent free or at a discount.

If Attorneys do not perform their duties properly they can be ordered to compensate the Donor (or the Donor’s estate) for any losses. They can also face criminal charges if they ill-treat or wilfully neglect the Donor.

How Ashtons Legal can help?

Our experienced team can help you consider your specific circumstances and advise you in relation to your role and duties as Attorney and potential options available to you. We provide practical advice and assistance based on our legal knowledge and first hand experience.