Quite often the role of an attorney is relatively straightforward if the assets you are managing on behalf of someone who has lost capacity are not complex. However, on occasions we have seen attorneys who may have underestimated the scope of their role and have struggled with their obligations under the Mental Capacity Act 2005, particularly if the incapacitated person has complex or high value assets.
The Mental Capacity Act states that an attorney must act in the best interests of the person whose financial affairs they are looking after. They must also support the incapacitated person to be as involved in the decision making process as possible, amongst other things.
This can create tension in the attorney’s role, particularly if they need to create an income stream for the incapacitated person to pay for care fees for instance, but that the incapacitated person has a strong view about investments.
On 8th May 2019 the Office of the Public Guardian published guidance for attorneys. The guidance sets out the principals that attorneys must consider when making investment decisions on behalf of a person who lacks capacity. It also provides a helpful checklist of issues to consider in the decision making process. Their guidance can be found here
On the same day the UK Regulators Network also published guidance for financial institutions and utility companies to enable them to act consistently when they are presented with a Lasting Power of Attorney or Deputyship order. The guide, developed with the Office of the Public Guardian can be found here