Guidance for Attorneys

Attorney guidance from Will Trust & Protect Ltd. In making decisions with other attorneys, if you feel another attorney is not acting in accordance with their role and responsibilities you should firstly, raise your concern with the attorney, if you are not satisfied with the outcome, contact the OPG. The same applies if your decision-making is disputed. Keep notes or records of discussions so that you can demonstrate why you made the decision, and firstly, raise your concern with the person(s) making the dispute, then if you are not satisfied with the outcome, contact the OPG. Always bear in mind that the key objective at all times is the best interests of the donor. Even after registering the LPA, you should assume that the donor has capacity to make decisions themselves.

A person should not be treated as unable to make a decision just because they make a decision which, in your opinion, is unwise. You should only be making decisions for the donor when they are incapable of making them themselves may be capable, but have asked you to make them on their behalf. The donor may have a gradually degenerating condition, or may have capacity on one day, but not on another. You should devise a strategy for dealing with this that allows you to assess their capacity from time to time, and support them in making as many decisions as possible for them-selves, whilst allowing you to make everyday decisions like paying bills.

You might consider, for example, whether the donor has all the relevant information they need to make a decision? Could the information be presented or explained in ways that would make it easier for them to understand (e.g. by using pictures, photographs, sign language)? are there times of the day when the donor is most lucid? Could the support of a third party (e.g. a relative or friend) help the donor decide? If the donor disagrees with your decision, and they have capacity, you must go with the donor’s view. If they lack capacity you can make the decision, bearing in mind that donors can inform the OPG if they are unhappy about your decision-making (and the OPG can ask you to explain your decisions).

In deciding what is in the donor’s best interests, bear in mind: their past and recent wishes any views the donor has expressed in the past their beliefs and values the views of family members, parents, carers, etc. the possibility that the donor could regain capacity any other factors that may be specific to a donor’s circumstances any guidance in the LPA or other written statement.

There may be occasions when you need to obtain personal or confidential information about the donor from a doctor, bank, or solicitor, for example. Provided you are acting within the powers of the LPA this is appropriate, but you must only ask for information that is strictly relevant and maintain confidentiality where at all possible. Under a property and affairs LPA provided the donor has not placed restrictions you can make decisions about: Selling a donor’s house – this may involve deciding where the donor should live, and if so you would consult with those involved in making welfare decisions. If a sale would be below the property’s market value, or if you want to buy the property yourself or sell it to a family member, you may need to ask the court for authorisation.

A property and financial affairs LPA does not allow you to make decisions about the donor’s health and welfare. (A separate health a welfare LPA would allow an attorney to make such decisions.)

You should seek legal advice in such circumstances.

Selling the donor’s stocks and shares.

Making gifts on the donor’s behalf (see page 40 in frequently asked questions for more on making gifts).

But you cannot make decisions about:

making a will on the donor’s behalf, voting on the donor’s behalf , access the donor’s will unless the donor has included a condition that you can – however you can apply to the Court if you believe the will is essential in helping you carry out your role, and the person who holds the will refuses to show it to you.

Attorney guidance – Will Trust & Protect Ltd.

Frequently asked questions

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