ABSTRACT

Whether your attorney is a close friend or family member doing the job for expenses only, or a professional such as a solicitor charging for their work, they have the following duties.

To act always with utmost good faith in their dealings with you. Your attorney’s whole relationship with you is encapsulated in this one concept of ‘utmost good faith’.

Many relationships involve good faith, But your attorney’s relationship with you is one of ‘utmost good faith – uberrimae fidei’. This demands the highest standard of integrity. Your attorney must put your interests first at all times. They must be not only clean, but squeaky clean. https://s3-euw1-ap-pe-df-pch-content-public-p.s3.eu-west-1.amazonaws.com/9781843145349/7eddeccd-272a-4c6f-98e4-334d22281c64/content/i_2_B.jpg" xmlns:xlink="https://www.w3.org/1999/xlink"/>

To register the Enduring Power of Attorney (EPA) as soon as they have reason to believe that your mental capacity is failing.

To keep good accounts and records.

An attorney who is a solicitor or a qualified accountant will, of course, be bound by their own professional accounting rules, but a lay attorney must also keep good accounts and records. Once your EPA has been registered, the Court of Protection can order your attorney to show them their records and accounts.

There is a strong incentive to keep accurate records. If your attorney mixes your property with theirs, by a famous court case (Lupton v White 1808) all the property will be said to belong to you and not to your attorney! Thus separate bank and building society accounts for donor and attorney are vital. https://s3-euw1-ap-pe-df-pch-content-public-p.s3.eu-west-1.amazonaws.com/9781843145349/7eddeccd-272a-4c6f-98e4-334d22281c64/content/i_2_B.jpg" xmlns:xlink="https://www.w3.org/1999/xlink"/>

Not to engage in transactions between themselves and you – ‘internal’ transactions – without revealing it beforehand. For example, they cannot buy your house for their own use without fully and fairly telling you (or the Public Guardianship Office (PGO) if the EPA has been registered) the precise terms of the deal. Strictly speaking, the attorney does not need your consent to the transaction because you have given them the powers to go through with it. All the same, if you object your attorney can hardly go through with the transaction without finding themselves in breach of their duty of utmost good faith. Where the EPA is registered, the attorney would be unwise to proceed without the court’s prior consent.

If an attorney really wants to engage in an ‘internal transaction’, as well as disclosing their intentions they should also arrange for the donor of the power (you) to receive independent professional advice. If, by this stage, the EPA has been registered, the attorney should give the PGO independent valuations. https://s3-euw1-ap-pe-df-pch-content-public-p.s3.eu-west-1.amazonaws.com/9781843145349/7eddeccd-272a-4c6f-98e4-334d22281c64/content/i_3_B.jpg" xmlns:xlink="https://www.w3.org/1999/xlink"/>

Not to make ‘secret profits’ – for example, commissions for placing business.

Not to exceed their authority as set out in the EPA. If you grant your attorney a limited power only, then your attorney must stay within the limits.

To perform their duties with skill and care (see also p 84).