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Home » Wills, Trusts & Probate » Being an Attorney

Signing-Documents

Being an attorney

If you have recently been asked to be an Attorney for someone (The Donor) under a Lasting Power of Attorney, it is important that you are aware of the obligations and duties, which you will be taking on if you agree.

Please read this leaflet carefully as it outlines these duties and powers, and will help you, decide whether or not to accept the appointment.

Duties

It is important to note that there is no duty on you to act, if you do not wish to. The Lasting Power of Attorney merely authorises you to act if you wish to. Once you do start to act you will then be subject to various other duties and obligations.

  1. You must only act within the scope of the Power. The Power of Attorney may specify certain limitations, and you will be liable to pay the Donor compensation if you do anything outside of these limits.
  2. You will owe a duty of care to the Donor and you must use such care and skill, as you would do in the management of your own affairs.
  3. You must carry out all your functions under the power personally, and you cannot delegate your authority under the Power.
  4. You have a duty not to take advantage of your position. You must avoid conflicts between your responsibility to the Donor and your own personal affairs.
  5. You cannot, without consent, use your position to acquire a benefit for yourself.
  6. You must act in good faith.
  7. You have a duty to keep accounts. You should keep the Donor’s money and property separate from your own.
  8. You have a duty to keep the Donor’s affairs confidential.
  9. You must act in the best interests of an incapacitated Donor.

Powers

The extent of your authority may be limited in the Power of Attorney and it therefore important that you read it and are aware if these. As well as having the power to deal with the Donor’s financial affairs, you will have other powers as given below, unless the Power of Attorney specifies otherwise.

  1. If the Donor is a trustee, you can (subject to certain limitations) carry out the trustee functions on his behalf.
  2. You have the power to provide for other people’s needs if the Donor might reasonably been expected to do this.

You have the power to make gifts of a seasonal nature e.g. Birthdays or Christmas, to people related or connected to the Donor. These gifts must be reasonable having regard to the circumstance and the size of the Donor’s estate.

You cannot act under the Lasting Power of Attorney until it is registered with the Office of the Public Guardian. For acts, which you do not have the authority to carry out, you can apply to the Court of Protection for authorisation. This can, for example, be used to make more substantial gifts as part of a tax planning exercise.