YOUR DUTIES: As someone else’s attorney, you would be responsible for helping the donor make decisions on things such as:
- Buying and selling property as well as making and selling investments.
- Opening, closing, and running bank and building society accounts
- Paying taxes, bills, claiming pensions, welfare benefits, and allowances.
Even so, you should check the enduring power of attorney (EPA) form. The donor may have listed:
- Extra guidance on how they want people to make decisions for them.
- Further instructions or restrictions on what their attorney can do.
Managing the Donor’s Financial Affairs
All decisions should be made in the best interest of the donor any time you manage their finances. As a rule, that means keeping yours and the donor’s finances segregated.
Exceptions do apply when there is a joint bank account or when you both own a home together. In this case, you should inform the bank or the mortgage company that you are acting as an attorney for the other person.
The person acting as attorney must keep proper accounts. You would need to keep records of the donor’s assets, their income, spending and outgoings. It is not uncommon for the Office of the Public Guardian or the Court of Protection to check the bookkeeping.
Note: Misusing the donor’s money or making financial decisions to benefit yourself can result in a prosecution.
Buying and Giving Gifts
It is permissible to buy gifts or give away gifts using the donor’s money. You can also make donations to charities on behalf of the donor. But, the attorney must only make ‘reasonable’ gifts:
- To people who would usually expect to receive gifts from the donor (e.g. a relative).
- On relevant or suitable occasions (e.g. for a birthday or a wedding).
- To charities that the donor would approve of or where the charity has received a previous donation from the donor.
Note: The government has produced legal guidance for professional attorneys on the rules about giving gifts for a donor.
Buying and Selling Properties
As a rule, you would be able to buy or sell property on behalf of the donor, providing it is in their best interests. In some cases, you must apply to the Court of Protection for permission. Thus, contact the OPG if:
- The property sells for a price below the market value.
- You or one of your family members want to buy the property.
- You are planning to give the property to someone else.
Office of the Public Guardian
PO Box 16185
The donor may have a health and welfare lasting power of attorney (LPA). If so, it can affect selling the donor’s home. It may be necessary to discuss the matter with the relevant attorney on where the donor will live.
Making a Will
As the acting attorney, you cannot make a will on the donor’s behalf. But, you can apply to make a statutory will on behalf of another person if the donor needs to make one but is unable to do it themselves.
More than One EPA Attorney
The enduring power of attorney (EPA) form will list all the attorneys appointed. If it lists more than one attorney, you must check whether you need to make decisions:
- Jointly: Meaning all the attorneys (if there is more than one) must agree to any decisions.
- Jointly and severally: Meaning the attorneys can either make decisions together or on their own.
The donor can also choose to give instructions for some decisions to be made ‘jointly’ and others made ‘jointly and severally’. If attorneys appointed ‘jointly’ do not all agree together they cannot make the decision.
Appointing Joint Attorneys
What if your appointment is ‘jointly’ with other attorneys and one of you decides to stop acting as an attorney for the donor? In this case, the enduring power of attorney (EPA) would end by automatic process.
Note: If the enduring power of attorney ends there may other ways to help someone make decisions instead.
Getting Paid and Claiming Expenses
As a rule, only professionals get paid for acting as an attorney for someone else. So, it is unlikely that you will get money as part of your duties and responsibilities for enduring power of attorney.
You will be able to claim for certain expenses that you encounter while carrying out your duties as EPA attorney. Remember to keep the receipts so you can invoice the donor to reclaim expenses on things like:
- Phone calls (and fax)
- Postage and stationery
- Travel costs