The role of attorney

The attorney must be satisfied that they are acting in accordance with the Mental Capacity Act 2005 as explained in the Code of Practice.

There are five principles set out in Section 1 of the Act and the attorney must be familiar with these principles.

The attorney must apply certain standards of care and skills when making decisions on behalf of the donor.

It is therefore important to ensure that the actions of the attorney do not fall outside the scope of the Mental Capacity Act 2005.

  1. Attorneys under a Lasting Power of Attorney, Enduring Power of Attorney or General Power have a responsible role to act on behalf of the person who appointed you as their attorney (the donor) in their best interests. The attorney has important duties and must comply with the Mental Capacity Act 2005.
  2. An attorney under a Lasting Power of Attorney cannot act unless the Lasting Power of Attorney has been registered with the Office of the Public Guardian. Once registered the attorney will be able to make decisions on behalf of the donor.
  3. Provided there are no restrictions in the documents the attorney could sell the donor’s property and purchase another on the donor’s behalf, access the donor’s bank accounts, withdraw funds and reinvest funds and generally deal with the day to day administration of the donor’s finances.
  4. If the donor lacks capacity then an application to the Court may be required in order to make gifts on behalf of the donor.
  5. If the donor lacks capacity and changes to the donor’s Will are required then a Statutory Will application can be made to the Court by the attorney.
  6. The attorney can make decisions as to the future care requirements of the donor and which residential care home or nursing home the donor should move into if applicable.
  7. The attorney may make health and welfare decisions if appointed under a Lasting Power of Attorney for health and welfare and the donor lacks capacity. This could include life sustaining treatment decisions.

It therefore depends which type of Power of Attorney you are appointed as an attorney, as to what decisions you are able to make on behalf of the donor. Certain decisions will need the Court’s permission.

Our Elderly client team can offer the required specialist advice on all aspects of the role of attorney.

How can we help you

Call us on

0333 331 9877

Email your enquiryEmail your enquiry

Key Contacts

Nicola August

Partner & Head of Vulnerable Client

Val Prosser Val Prosser

Senior Associate