Category:
Lasting Power of Attorney
The most common mistakes made by Property and Financial Affairs attorneys under a Lasting Power of Attorney (LPA) in the UK include:
1. Mixing Personal Finances with the Donor’s
- Attorneys sometimes mistakenly combine their personal finances with the donor’s money. Attorneys must always keep finances clearly separated to avoid confusion or misuse.
2. Misunderstanding the Scope of Authority
- Attorneys might incorrectly assume they have authority over health or personal decisions. Property and Financial Affairs LPAs only cover financial matters.
3. Failure to Keep Accurate Records
- Attorneys are required to maintain detailed financial records, including receipts, bank statements, and transaction logs. Neglecting this responsibility is a common oversight and can lead to legal issues.
4. Not Acting in the Donor’s Best Interests
- Attorneys may inadvertently prioritize their own convenience or benefits, rather than acting solely in the donor’s best interests. All actions must align with what benefits the donor.
5. Failure to Register or Incorrect Registration with the OPG
- The Lasting Power of Attorney must be correctly registered with the Office of the Public Guardian (OPG). Delays, mistakes in the registration process, or attempting to use an unregistered LPA are common pitfalls.
6. Improper Gifts or Unauthorized Transfers
- Attorneys mistakenly believe they can freely gift the donor’s money or property. Gifts must be modest, aligned with past practices (like birthday gifts), or specifically authorized by the OPG or Court of Protection.
7. Selling or Managing Property without Proper Authority
- Selling or transferring property without clear authorization or without considering the donor’s best interests and obtaining proper valuations can lead to significant legal consequences.
8. Failing to Consult the Donor (if possible)
- Even if the donor’s mental capacity is reduced, attorneys should still involve them in decisions as much as practically possible. Ignoring this can be considered neglectful.
9. Failing to Claim Benefits and Financial Assistance
- Attorneys may overlook entitlement to benefits or allowances that could significantly improve the donor’s quality of life.
10. Paying Themselves for Acting as an Attorney without Authorization
- Attorneys cannot pay themselves fees for their role unless specifically allowed by the LPA or approved by the Court of Protection.
Consequences of These Mistakes:
- Investigations by the OPG
- Removal as an attorney by the Court of Protection
- Personal liability for financial losses or misconduct
- Criminal charges in extreme cases
It’s essential that attorneys thoroughly understand their responsibilities, seek legal advice when uncertain, and act transparently and responsibly.
