As an attorney, you’ll be trusted to make important decisions, often at critical times, on behalf of someone who can no longer manage their own affairs.
Here are some top tips for acting as an attorney:
1. Record-keeping is key
It’s important to keep clear written records of the decisions you make, money spent and actions taken, including dates and your reasons. This helps provide an accurate record to avoid disputes and answer any questions raised later.
If decisions are made informally and without documentation, this can create problems, especially if other family members feel left out or disagree with your decisions.
2. Be cautious when considering making gifts
Attorneys have a tight, limited power to make gifts from the donor’s estate. This is often misunderstood and many attorneys have found themselves in front of a judge being told that the gifts that they authorised went beyond what the law allows.
Attorneys can make small, ‘seasonal’ gifts, such as modest birthday or Christmas presents, that the donor would typically have given. Larger gifts (e.g. tax planning gifts) are often a good idea but they can only be made with the court’s permission.
Failing to follow these rules can result in legal action and/or the cancellation of the LPA.
3. Understand your limits
You’re there to help manage the donor’s affairs, not to take over their estate entirely. Wherever possible, assist the donor in making as many of their own decisions as they can, and make sure their wishes and preferences are respected.
If there’s any uncertainty about your duties or where the line is drawn, it’s important to seek legal advice early on.
4. Managing bank accounts
Dealing with banks can be difficult. You may find that some banks have dedicated Power of Attorney teams, while others will require you to go in person through one of their branches.
Banks have a duty to protect their customers’ finances so you should expect to fill in paperwork and answer any questions they may have. Ensure you have all the appropriate documentation to hand when dealing with banks.
If the donor is still able to make some decisions, it’s often sensible to leave one account which they will manage for day-to-day spending, with the rest managed separately under your authority (but still in the donor’s name).
5. Best interests
Remember that everything you do must be in the best interests of the donor. If you could not adequately explain why a decision that you made was in the donor’s best interests, don’t do it! Part of this means never putting yourself in a position where your interests conflict with those of the donor and part of it means keeping the donor’s affairs confidential. There is a time for consulting with the family, of course, but it is also important to respect the privacy and confidentiality of the donor.
How TWM can help you
Understanding your duties as an attorney under a Lasting Power of Attorney is essential, especially when complex situations arise. At TWM, we provide clear, practical advice to help you navigate your responsibilities with confidence. Whether the donor’s capacity is fluctuating, or there are potential conflicts between attorneys or with third parties, our experienced Private Client team is here to support and guide you every step of the way.
We recommend coming to see us as when it looks like you might need to start making use of the LPA(s), so that we can run you through the dos and don’ts of being a good attorney and answer any questions that you might have which are specific to your situation. This will give you confidence as you start to act that you are doing the right thing.
For further information, please contact our expert Private Client team for an initial no-obligation consultation.
