Executor lacks capacity before obtaining the grant In the case of mental incapacity of the person entitled to apply for a grant, where there is no person authorised by the Court of Protection to apply for the grant, the grant may be made to the lawful attorney of the person lacking mental capacity acting under a registered EPA or LPA. The LPA must give the donee powers to deal with the property and affairs (which include finance) of the donor. A power limited to making decisions about the donor's personal affairs, or that does not include specific power to obtain a grant or general power to deal with property and affairs, is not acceptable to allow the attorney

The scope of the attorney’s authority is subject to: • the provisions of the Mental Capacity Act 2005 (MCA 2005) and, in particular, sections 1 (the principles) and 4 (best interests) (MCA 2005, s 9(4)(b)) • excluded decisions under MCA 2005 • the provisions of any other enactment • the common law of agency and fiduciary duties, and • any conditions or restrictions contained in the instrument (MCA 2005, s 9(4)(b)) An attorney appointed by an LPA therefore has a wide power to do almost anything that the donor himself could do. The creation of a trust would usually be an action which would be excluded by MCA 2005, s 12(2), being a gift, unless it falls within the limited exceptions. However, if the terms of the intended trust are sufficient

A ‘Do Not Resuscitate’ (DNR) order may take the form of an expression of wishes made by a patient or it may take the form of a notice added to the patient’s notes by a treating doctor. Advance directive When a DNR order is prepared by the patient themselves, they are a form of advance directive; whether they are legally binding will depend on the same sorts of considerations as apply to any other advance directive. It is important to ensure that it still represents the views of the incapacitated patient immediately before they lost capacity. If there is credible evidence that the patient communicated their

For the purposes of this Q&A we have assumed that the Lasting Power of Attorney (LPA) was registered with the Office of the Public Guardian and that there are no uncertainties in relation to the question of the donor’s mental capacity. Subject to any restrictions included by the donor in the LPA, an attorney under a Financial LPA will be able to do almost anything which the donor could have done for themselves in relation to the donor’s financial affairs (the power does not extend to decisions over health and welfare). This may include withdrawing money from accounts, paying household bills, signing cheques, collecting income and benefits, buying and selling shares

We have assumed that this Q&A is referring to an attorney appointed as attorney under a lasting power of attorney (LPA). Generally An attorney is not ordinarily able to profit from his fiduciary position, but the donor may allow an attorney to charge for his services by including an instruction to this effect in section 7 of the LPA form. In all cases where a professional is appointed, an appropriate charging clause should be included, and the following can be used as a general precedent: 'My attorney [name] shall be entitled to charge at his normal professional rates from time to time in force for acting as my attorney.' The Law Society's guidance advises that solicitor attorneys should discuss current terms of business with the donor including charging rates and frequency of billing. Professional attorneys must also have regard to the OPG's 'Good practice

The issue addressed in this Q&A is whether an attorney can delegate all or some of their powers as attorney (with particular reference to Lasting Powers of Attorney). If so, how can they delegate such powers? Types of power of attorney There are three main types of power of attorney: • Ordinary Powers of Attorney (OPA)—also known as general powers of attorney. These are granted with regard to the donor’s property and affairs. They can be used for a wide range of circumstances or for a specific purpose, such as selling a house or for a limited period, as, for example, if the donor is going abroad or into hospital. An OPA automatically ends when the donor becomes incapacitated • Lasting Powers of Attorney (LPA)—these can be (i) Property and Financial Affairs LPAs or (ii) Health and Welfare LPAs: section 9 of the Mental Capacity Act 2005 (MCA 2005). See, generally: Lasting powers of attorney—overview. A Property and Financial Affairs LPA gives the power

As a general rule, whatever a person has the power to do themselves, they may do by means of an agent. There are two exceptions to that general rule: • where statute requires that the transaction is evidenced by the signature of the principal himself, or • where the competency arises by virtue of holding a public office or by a power, authority or duty of a personal nature and requiring skill or discretion for its exercise or where a statute imposes on a person a duty which they are not free to delegate. See Commentary: General Rule as to competency of principals: Halsbury’s Laws of England

As a general response to this query, see the following extract from the Commentary: Status of Attorney: Tristram and Coote’s Probate Practice [11.68]: ‘A person acting under a power of attorney has the same status as the donor of the power would have if applying personally…’ Therefore the attorney can apply for probate in place of the sole executor and the appropriate Statement of truth can be found at: Statement of truth for administration (will) to the attorney of an executor: Tristram and Coote's Probate Precedents [A6.108]. As there is no indicated incapacity of the

The judgment of the Court of Protection in Re Buckley: The Public Guardian v C at [41] clarified that the fiduciary duties owed to a donor by their attorney pursuant to Mental Capacity Act Code of Practice, para 7.60, are similar to the fiduciary duties owed under sections 4 to 5 of the Trustee Act 2000 (TrA 2000). This therefore means that reasonable and properly incurred expenses will be allowed under the same principles as TrA 2000, s 31(1), subject to any specific authority

Where a person is named as an executor in a Will, they cannot be mandated to act in that role. Such a person can, provided that they have not already intermeddled in the estate, renounce their position as executor. This is done by the execution of form PA15. A power of attorney is a written legal authorisation allowing B (an individual or other legal person) to act on behalf of A (likewise, either an individual or other legal person). B is then able to carry out acts on behalf of A without A being present, and such acts are treated as being the acts of A. For the long-term delegation of a power of attorney,

We refer you to Q&A: Can a person acting under an ordinary power of attorney resign the directorship of the principal who granted the power?, particularly the sections ‘Delegation by director(s)’ and ‘Authority to sign letter of resignation’. In addition, we also refer you to Q&A: Can directors delegate their powers? What happens if a director who appointed an attorney loses capacity?, which

You have asked: Can an attorney under a registered lasting powers of attorney for property and financial affairs ask trustees of the donor's Self-Invested Personal Pension to pay money out? We have assumed that the lasting power of attorney (LPA) is a valid, registered LPA for property and financial affairs. A LPA for Property and Financial Affairs authorises the attorney to make decisions about anything relating to the individual's property and financial affairs, including their pension savings. For further guidance, see Practice Note: LPAs—the attorney's duties and powers. A LPA attorney will therefore generally have authority to deal with the donor’s pensions, although the following points should be borne in mind: • the attorney should carefully check section 7 of the LPA form to ensure there are not any instructions that restrict their powers