As an attorney acting under a lasting (or enduring) power of attorney, you will usually be able to make day to day decisions on behalf of the donor without resort to professional advice (except perhaps in relation to suitable investments).
However, there are times when professional advice and guidance should be sought. For example, you may wish to take a decision which is outside the scope of your powers as attorney (for example, a large gift by the donor for tax-planning or other reasons) or you may need guidance on the extent of your authority or the lawfulness of actions already taken.
The Court of Protection oversees the affairs of people who lack the mental capacity to make their own decisions and it is open to any attorney to apply to this Court for a decision or for guidance as to what is in the donor’s best interests.
The application procedure is a formal one and your solicitor will be the best person to help you with the application forms and supporting documents required. Applications for advance approval of gifts are often dealt with on paper and without the need for an attended hearing.
Examples of circumstances in which the Court of Protection should be involved are as follows:
- For advance approval of gifts (outside the small gifts an attorney is allowed to make on customary occasions) – eg gifts of money or other assets, gifts into trust, deeds of variation where the donor has received an inheritance, regular gifts out of excess income to be made each year, interest-free loans and large charitable gifts
- For advance approval of any transaction or investment which the donor has expressly stated should not be carried out
- Where changes to the donor’s Will are proposed
- When there is disagreement within the family as to what is in the donor’s best interests
- Where there is doubt as to whether the donor has capacity to make a decision about a particular matter (eg as to medical treatment)
This list is not exhaustive and the Court has very wide powers to make orders affecting both property and personal affairs.
As an attorney, acting outside the scope of your authority can have serious consequences. The Public Guardian, once alerted to a possible abuse of power by an attorney (usually by a concerned family member or social worker) will carry out an investigation. The investigation may result in a recommendation that retrospective Court of Protection approval be obtained, a request that any gifts be returned, removal of the attorney and at worst, a referral to the police.
If you think this may affect you and would like further advice, please contact any member of our Tax, Trusts and Estates team:
Call Edward Pennington on 01483 540549 or email him firstname.lastname@example.org