How to act as an attorney

Before you do anything

Being named as an attorney and actually having authority are two different things. Nothing you do on the donor's behalf is valid until the LPA is registered with the Office of the Public Guardian, and even then your powers are shaped by exactly what the donor wrote on the form. Take an hour before you contact anyone to work out precisely what you can and cannot do.

• Check the LPA is registered — the Office of the Public Guardian stamps every page. An unregistered LPA gives you no authority at all. See when does an LPA take effect.
• Check the type. A property and financial affairs LPA says nothing about medical treatment, and a health and welfare LPA gives you no access to money.
• Read section 5 and section 7 of the form: how you must act together, and any preferences or instructions the donor wrote.
• Check whether the financial LPA says it can only be used once the donor lacks capacity.

Worked example. Priya is named as her father Raj's sole attorney on a property and financial affairs LPA. Raj has just been discharged from hospital after a stroke and cannot manage his bank account. Before Priya rings the bank, she checks the registered LPA: it is registered, it appoints her alone, and section 7 contains no restriction. That confirms she can act immediately, without waiting for a formal capacity assessment, because the LPA was not limited to loss-of-capacity use only.

Your first contacts

1. Bank and building society — see using a registered LPA with banks.
2. Pension providers and the DWP, and any benefits being paid.
3. Utilities, council tax, insurance and the mortgage or landlord.
4. GP surgery and any care provider, if you are a health and welfare attorney.
5. HMRC, if the donor completes a tax return or is due a refund.

Most organisations want either the original LPA, an OPG access code, or a certified copy. Get several certified copies made at the start; it saves weeks, because banks, pension providers and the local authority will often each want to see their own copy at the same time, and posting the original back and forth between them can take a fortnight per organisation.

The rules you are working under

The Mental Capacity Act 2005 assumes a person has capacity unless it is shown otherwise, and assumes capacity is decision-specific: someone can be perfectly able to choose what to have for lunch while being unable to manage a mortgage. Do not treat a diagnosis, an age, or a bad day as proof that the donor cannot decide something for themselves. Where there is genuine doubt, a short capacity assessment by the GP is worth arranging rather than guessing.

Keep records from day one

• Keep the donor's money entirely separate from your own.
• Keep receipts and a simple running list of income, spending and larger decisions with your reasons.
• Note who you consulted for significant decisions, especially the sale of a home or a move into care.
• Records are what protect you if anyone later questions what you did.

See attorney record keeping for a fuller system, but the habit that matters most is starting immediately. Attorneys who wait until there is a problem to begin recording almost always struggle to reconstruct the first few months accurately.

Decisions to slow down on

• Selling the donor's home — see selling a house under an LPA.
• Any gift beyond a small, customary one — see can an attorney make gifts.
• Anything where your own interests overlap with the donor's — see conflicts of interest.
• Moving the donor, changing their will, or voting on their behalf — none of these are within an attorney's power.

Common questions

Read next

• What are an attorney's duties and responsibilities?
• Attorney record keeping: what to write down and keep
• How to use a registered LPA with banks