Planning for the unexpected – your duties and responsibilities as an attorney

• Posted onJanuary 4, 2016

Accepting to act as an attorney is a major responsibility and can be a daunting task, particularly if you do not know what is expected of you. You may be appointed to manage someone’s affairs under an Enduring Power of Attorney (‘EPA’) or under a Lasting Power of Attorney (‘LPA’). Often these powers are set up by a donor (the person making the power of attorney) as an insurance policy for a rainy day, but once it is needed the attorneys are often unsure how to proceed.

 

The first step will be to check that the power of attorney is effective. For an LPA, it must have been registered with the body known as the Office of the Public Guardian (‘OPG’) before it can be used. If appointed as an attorney under an EPA, an attorney will need to register the document with the OPG if the person who made the EPA is losing or has lost mental capacity. Registration can be a time consuming and administratively onerous exercise which is why it is important to get it right.

 

Once you have established that the power of attorney is effective, you will then need to record the document with the donor’s bank and other asset holding companies. Often simply showing the power of attorney to a bank will not be enough, therefore forms and your identity may also need to be signed and submitted before an attorney will be able to manage the account. Again, this can be another time consuming task which many attorneys do not expect.

 

As an attorney you also have a number of duties and responsibilities. For example you will have a duty of care to apply the same care, skill and diligence that you would use to make decisions about your own life. You have a ‘fiduciary duty’ towards the donor which means that you must not take advantage of your position. You should not put yourself in a position where your personal interests could conflict with your duties. Attorneys must also keep clear accounts and, as a general rule, gifts are not allowed (subject to a small number of exceptions).

 

Before taking up your role as attorney it is therefore important to obtain the right advice and to be aware of all your duties and responsibilities.

 

For legal advice about creating an EPA or LPA and to discuss your personal circumstances please email carolehaestier@wspsolicitors.com or call 01453 847200.