Deputies and Attorneys: dos and don’ts

 

Whereas an attorney is someone appointed by an individual(P) to act on their behalf,

a deputy is appointed by the Court of Protection when P has lost capacity but

had not put a Lasting Power of Attorney (LPA) in place (appointing their chosen attorney).

Despite these key differences as to how the control of P’s affairs is granted, the legal duties and responsibilities imposed

by law in this respect are generally, the same.

Dos:
1. Always act in the best interests of P and keep full accounts/financial records of your dealings with P’s affairs;
2. Only act within the limits set by the Deputyship Order or by the LPA (if any imposed)
3. Respect the key principles of the Mental Capacity Act which is summarised as follows:
4. Presume P has mental capacity until it is proved otherwise; (Lacking capacity to make a specific decision does not necessarily mean P is incapable of making other decisions)
5. Support P in making their own decisions as much as possible. Only once all practical options have been exhausted in terms of supporting P’s decision -making, and they are still unable to do so, can they be assumed to be unable.
6. Make decisions in a way which causes minimal restriction of P’s rights and freedoms;
7. Keep P’s assets (such as monies in banks and investments) separate to your own and preferably keep these in P’s name
8. Seek specialist investment advice where relevant;

Don’ts:
1. Act in a self-serving manner. The interests of P must always come first;
2. Profit from your role as an attorney
3. Buy P’s assets without a specific court order
4. Sell P’s assets to a family member without a court order
5. Act in a way which would cause a conflict between your own and P’s interests. For example, certain situations where the attorney/deputy lives in P’s property or owns a share in it could cause conflict of interest so legal advice should be sought in such situations.
6. Make gifts to other people or to yourself from P’s assets, although there are exceptions such as gifts usually made by P on customary occasions or where specific instructions are set out in the LPA in this respect.

Potential consequences for deputies/attorneys who overstep their powers:
1. The Public Guardian/Court of Protection may:
2. Revoke the deputyship or LPA
3. Seek to retrieve gifts made or compensation for loss caused
4. Demand that you make a retrospective application for their approval if this would have been likely to have granted
5. Inform the police

Whether you are an Attorney; Deputy or someone considering making their own LPA it is strongly recommended that you seek independent legal advice not only to ensure the LPA prepared is fit for purpose but also to ensure clarity and to prevent  an inadvertent breach of duties.

Please contact one of our experienced solicitors: Alex Livesey or Paul Solomons for expert advice on LPAs and Deputyship orders by calling 01202 802807.

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