Lasting Powers of Attorney: Role of the Attorney

It can be a very difficult time when someone we know or love starts to become unable or incapable of making their own decisions. Without the correct safeguards in place, where someone becomes unable to perform simple tasks such as paying bills or consenting to medical treatment, It can be almost impossible in some circumstances to ensure that their wishes are reflected and carried out.

The Office of the Public Guardian allow a person (‘the Donor’), whilst they have mental capacity, to appoint individuals (‘Attorneys’) of their choosing to step into their shoes and make decisions on their behalf should they ever lose the ability to do so themselves. This enables the individual to be secure in the knowledge that things will be done as they would like them to be, affording a certain amount of autonomy to that individual, which can often be of great comfort. Attorneys can be chosen to deal with (a) your property and financial affairs; and (b) your health and welfare, or both.

If you are ever appointed as an Attorney to handle someone’s affairs, but are unsure what you must do, please bear the following information in mind:-

The Mental Capacity Act (2005)

This legislation sets out 5 key rules surrounding the loss of mental capacity:-

1. The Donor should continue to make their own decisions for as long as they are able;
2. The Attorney should give them all the help they need in making the decision before deciding they cannot make it;
3. An unwise or seemingly bad decision does not mean the Donor lacks capacity;
4. Any decisions made by the Attorney must be in the best interest of the Donor;
5. All that an Attorney does should restrict the Donor’s basic rights in the least possible way.

These rules should form the foundations of any decision you make on behalf of the Donor whilst acting under a Lasting Power of Attorney. Before making any such decisions, you should always check the physical Lasting Power of Attorney document for any instructions, restrictions or conditions that the Donor may or may not have placed on you, I.e. they may not want you to act in respect of the family business or similar. Attorneys can be appointed alone, together with another person (unanimous agreement on all decisions) or together with others but with the ability to act independently of the other Attorneys. Other Points to Note. You are, as an Attorney, entitled to claim back any out-of-pocket expenses that you incur in performing your duties, examples may include paying for travel or postage costs. These amounts can be recovered from the Donor’s funds, but they must always be reasonable and you must not benefit from it. If the Office of the Public Guardian feels that they are not proportionate, you may be investigated and have to repay the money. You could also be removed as an Attorney by the Court of Protection. You cannot be paid for acting, unless you are acting in a professional capacity, I.e. as a solicitor. However, if the Donor has decided that they want to pay you for doing this, they may choose to write instructions to that effect in the LPA, in which case you can be paid in accordance with those wishes.

These are only a few key points surrounding the appointment and duties of Attorneys and if you do require additional advice, or would like to discuss the options surrounding putting Lasting Powers of Attorney into place, please contact our Private Client team who specialise in this area of the law.