Duties Of A Lay Attorney Appointed To Manage Someone’s Property & Financial Affairs

When you agree to act as a Lay Attorney for a friend or family member it is easy to forget about the level of responsibility you are taking on. Few people realise the level of work required in assisting someone who has lost the capacity to manage their property and financial affairs. As a Lay Attorney, it is important to know what duties you will be required to carry out and what decisions you can make on behalf of the person in question, to make sure you act within your authority.

This blog sets out the duties of a Lay Attorney appointed to manage someone’s property and financial affairs.

Acting in the Donor’s best interests

You should always act in the best interests of the donor when making any decision on their behalf. You should consider what they would have wanted/decided if they could do so. If you believe that the donor cannot make the decision, you should consider carefully what to do and consult with people who know them to make the best decision. This can involve liaising with family, friends or other professionals involved in Donor’s affairs.

Acting in accordance with the terms of the Lasting Power of Attorney (LPA)

It is important to review the LPA thoroughly and ensure you act within the authority it grants to you. You cannot make gifts or sell the Donor’s property if the LPA restricts you from doing so. It is also important to remember that you cannot act under an LPA until it has been registered with the Office of the Public Guardian.

It is important to check the LPA to ascertain what kind of LPA it is and also if you are allowed to use it while the donor still has the capacity or whether the donor must lack the capacity for it to be used. If the LPA is for property and financial affairs, you cannot make health and welfare decisions on behalf of the Donor and vice versa.

If you are appointed to act alongside another attorney, you need to consider whether you are allowed to take decisions independently of each other and together (being appointed on a joint and several basis) or whether you must act together when making all decisions (being appointed on a joint basis). Even if you are appointed on a joint and several basis, the LPA can specify that particular decisions need to be decided jointly, so you should always check that there are no specific requirements within the LPA.

Helping the donor to make their own decisions where possible

You should always assume the Donor has the capacity to make a specific decision until this is disproved. If you are unsure whether the donor has the capacity to make a decision, you should obtain an expert opinion, to assess the donor’s capacity to make that decision.

Alongside these obligations, there are also set ways that the Office of the Public Guardian will expect you to manage the Donor’s finances on their behalf.

Our next blog considers how Lay Attorney’s should manage the Donor’s finances on a day-to-day basis.