Legal News | 18.02.21

Ignorance is bliss?

It is said that ignorance is bliss but, for attorneys acting under an Enduring Power of Attorney (EPA) or a Lasting Power of Attorney (LPA), ignorance of their legal responsibilities may be anything but blissful.

The relationship between attorneys and the person who appointed them (their donor) is fiduciary. This means that attorneys must always act in good faith, with honesty and integrity. Attorneys must not allow themselves to be put in a position where the duties they owe to their donor conflict (or may conflict) with their own personal interests. Failure to do so may result in attorneys being personally liable to their donor.

Attorneys are governed by the Mental Capacity Act 2005 and should follow the principles set out in section 1 of the Act including that any act done, or decision made, for or on behalf of their donor must be done, or made, in the donor’s best interests. There is also a detailed Code of Practice accompanying the Act which can be found at: www.gov.uk/government/publications/mental-capacity-act-code-of-practice.

Issues frequently arise around attorneys making gifts on behalf of their donor. Under EPAs and LPAs, attorneys have limited powers to make gifts. Unless the document states otherwise, attorneys can make reasonable gifts to family and friends of the donor on occasions when such gifts would normally be given (for example, birthdays and anniversaries). Attorneys can only make most other gifts with the permission of the Court of Protection.

If you are an attorney and would like to understand your legal responsibilities, Wansbroughs would be happy to help. Please contact your usual Wansbroughs contact or e-mail wealth@wansbroughs.com.