It is not uncommon for someone to provide for the needs of another person. There are many situations where someone will assume responsibility for another person, such as:-
- A husband who has historically been the main breadwinner and who has been supporting himself and his wife.
- A parent maintaining a child who is disabled.
- A parent helping an adult child with living costs.
- A grandparent helping an adult child with family costs or paying school fees, etc.
There are no restrictions on someone providing for the needs of another person but the situation changes when the provider loses capacity (referred to “P” in this article) since they may no longer make such financial decisions. Very often, an attorney (if P had previously appointed an attorney by making a Power of Attorney) or a deputy (if the Court of Protection appoints someone on behalf of P) would take over P’s financial matters. The question which then arises is whether the attorney or deputy can simply continue providing for someone else using P’s monies.
Whilst an attorney or a deputy has the authority to deal with P’s finances, they need to exercise caution when parting with P’s monies. This is because the primary duty of an attorney or a deputy is to make decisions in the best interests of P and their main focus should be on providing for P. Attorneys also owe a fiduciary duty to P and should not therefore gain personal benefit from their position, nor should they put themselves in a situation where their personal interests conflict with P’s interests.
Can an attorney or deputy provide for the needs of someone other than P?
It may be possible for an attorney or a deputy to provide for the needs of others. However, this depends largely on the power they given. When considering maintenance payments, the Court of Protection and the Office of the Public Guardian draw a distinction between a deputy or an attorney under an Enduring Power of Attorney (“an EPA attorney”) and an attorney under a Lasting Power of Attorney (“an LPA attorney”).
The Court of Protection would normally allow a deputy to make provision for the needs of anyone related to or connected to P. The provision included in a standard Deputyship Order is:
“The deputy may make provisions for the needs of anyone who is related to or connected with P if he provided for, or might be expected to provide for, that person’s needs by doing whatever he did, or might reasonably be expected to do, to meet those needs.”
Therefore, maintaining someone close to P is allowed and a deputy does not require the Court of Protection’s approval. However, before payments are made, the deputy should check that P did provide for the needs of that particular person in the past and/or P might have been expected to provide for that person. The deputy must also consider all the factors listed in the Mental Capacity Act and ensure that making such payments is in P’s best interests.
Should the deputy be in doubt about their power or find they are in a conflicted position, they should consider making an application to the Court of Protection.
Enduring Power of Attorney
The Mental Capacity Act specifically allows an EPA attorney to pay maintenance to themselves or to someone P might be expected to provide for. This is clearly set out at Schedule 4 of the Mental Capacity Act 2005:-
“Subject to any conditions or restrictions contained in the instrument, an attorney under an enduring power, whether general or limited, may (without obtaining any consent) act under the power so as to benefit himself or other persons that the donor to the following extent but no further!
- he may so act in relation to himself or in any other relation to any other person if the donor might be expected to provide for his or that person’s needs respectively,
- he may do whatever the donor might be expected to do to meet those needs.”
Therefore, an EPA attorney does not need the Court of Protection’s approval to maintain themselves or someone other than P as long as the attorney is acting in P’s best interests. Should there be any doubt regarding the attorney’s power or the level of maintenance being paid out, the attorney should consider making an application to the Court of Protection.
Lasting Power of Attorney
The position is, however, very different for an LPA attorney. There is not an express permission for an LPA attorney to benefit themselves or other persons.
It is therefore arguable that an LPA attorney does not have the authority to maintain someone other than P. An LPA attorney has to exercise caution, even if P expressed in the LPA document the wish to pay someone else maintenance. The LPA attorney should not rely blindly on these wishes as the wishes may be seen as making gifts to others and there are strict rules to follow when it comes to gifting. LPA attorneys should therefore seek advice and consider making an application to the Court of Protection to seek their approval before making such payments.
The position may be different if P has a legal obligation to maintain their spouse or a dependent. In such situations, the attorney may authorise payments but it is advisable to seek advice first to ensure that the payments made are within the scope of their powers.
Where the LPA attorney is also the person whom P might be expected to provide for, this may give rise to a conflict of interests. Because the LPA attorney will gain personal benefit from P’s funds, an application for the Court of Protection’s approval will be required.
Deputies and EPA attorneys are usually given the authority to provide for the needs of others without requiring the Court of Protection’s approval. However, they are advised to check, in the first instance, if there are restrictions imposed on their powers. They are also advised to document why making such payments is in P’s best interests and to ensure that P is not being denied of funds to meet his own needs. If there is any doubt regarding such payments, it is advisable for the deputy or the EPA attorney to seek the Court’s approval. On the other hand, an LPA attorney should consider seeking advice and making an application to the Court of Protection before maintaining someone other than P.