Q&As

Can an attorney acting under an LPA for property and financial affairs conduct divorce and financial remedy proceedings on behalf of the donor (a) where the donor still has the mental capacity and (b) where the donor lacks the mental capacity to conduct these proceedings themselves?

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Published on LexisPSL on 06/07/2018

The following Private Client Q&A provides comprehensive and up to date legal information covering:

  • Can an attorney acting under an LPA for property and financial affairs conduct divorce and financial remedy proceedings on behalf of the donor (a) where the donor still has the mental capacity and (b) where the donor lacks the mental capacity to conduct these proceedings themselves?

Can an attorney acting under an LPA for property and financial affairs conduct divorce and financial remedy proceedings on behalf of the donor (a) where the donor still has the mental capacity and (b) where the donor lacks the mental capacity to conduct these proceedings themselves?

Once registered with the Office of the Public Guardian (see Practice Note: LPAs—registration procedure), a lasting power of attorney (LPA) for property and financial affairs may be used, even if the donor still has mental capacity, unless the LPA contains a restriction stating that the attorney may only act under the LPA if the donor lacks capacity.

Assuming that the LPA has been registered and does not contain any such restriction, the question is whether the scope of the authority of an attorney under an LPAfor property and financial affairs extends to conducting divorce and financial remedy proceedings on behalf of the donor.

The general rule is that, if a donor does not restrict the decisions the attorney can make, the attorney will be able to make decisions regarding any or all of the person's property and financial affairs. The Mental Capacity Act 2005 (MCA 2005) Code of Practice states at paragraph 7.36 that this might include:

  1. buying or selling property

  2. opening, closing or operating any bank, building society or other account

  3. giving access to the donor's financial information

  4. claiming, receiving

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