22 August 2023

Acting As An Attorney And What This Means

If you are named as an attorney in a Lasting Power of Attorney (LPA) then it is likely you will be required to make decisions on behalf of the donor with regards to either their finances, their health and welfare, or both.

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If you are named as an attorney in a Lasting Power of Attorney (LPA) then it is likely you will be required to make decisions on behalf of the donor with regards to either their finances, their health and welfare, or both. Acting as an attorney is an important role and therefore it is vital you are aware of the legal framework that surrounds them.

Financial LPAs allow an attorney(s) to make financial decisions, such as paying bills or dealing with investments and also buying and selling property. Under a Financial LPA, an attorney may be able to act before the donor has lost capacity, provided that it has not been specified in the document that the attorney can only act once the donor has lost capacity.

However, an LPA for health and welfare, which covers decisions such as medical treatment received, can only be used by an attorney once the donor has lost capacity. As an attorney it is, therefore, useful to understand when you can act by either reviewing the LPA document or by determining if the donor has lost capacity.

In law, the concept of capacity can be complicated depending on the situation it surrounds. In the context of LPAs, for some decisions it may be sufficient for an attorney to have a reasonable belief that the donor lacks capacity before acting.

However, with regard to decisions that have been challenged or can have major consequences for the donor, such as the sale of a property, a medical professional may be required to determine capacity. It is important for capacity to be assessed in terms of the donor’s ability to make a decision at the time it needs to be made. This is because some donors may have capacity to make decisions on some days but not others.

Key responsibilities for attorneys

As an attorney there are many key responsibilities that are set out by the Mental Capacity Act 2005. The overarching theme is that decisions should always be made with the best interests of the donor in mind.

Addressing the key points in turn:

  1. As an attorney you must assume the donor can make their own decisions unless having considered their capacity it is established, they cannot.
  2. You must also help the donor to make as many of their own decisions as possible, so that they can retain as much control over the decisions as possible.
  3. You must ensure when making a decision for a donor, that you do so in a way that is as least restrictive as possible, so that the donor’s rights and freedoms can still be maintained.
  4. It is also important to remember that just because a donor makes a bad decision or one that you as an attorney do not agree with, that does not mean they do not have the capacity to make it. A Lasting Power of Attorney is about making decisions when it is in the donor’s best interest to make a decision, rather than controlling the decision they make.

As an attorney, it is important to retain details of any transactions or decisions that you make on the donors’ behalf. This is so that any decisions can be evidenced in the event they are challenged, although someone simply disagreeing with a decision you make is not necessarily grounds to challenge it.

It is also important to retain this information as, whilst you are not necessarily able to be paid to act as an attorney, you are able to recover any expenses incurred in carrying out your duties.  An LPA can, for example, specify that a professional attorney be paid for the work undertaken in fulfilling this role.

Acting on the donor’s behalf

Your main role as an attorney is to provide for the donor’s needs and, as a result of this, the Mental Capacity Act 2005 states that an attorney has no authority to make gifts except in certain circumstances, such as birthdays for family members and friends. These gifts must be considered reasonable having regard to circumstances such as the size of the donor’s estate. If you wish to make a gift outside of this scope then you may need to consider applying to the Court of Protection for authority, which is something Kew Law can assist with.

It is also important to remember that, as an attorney, you are not able to make changes to the donor’s will and this again will require an application to the Court of Protection, if appropriate.

You should also note that it is possible for you to stop acting as an attorney at any time by contacting the Office of the Public Guardian.

In conclusion, being an attorney is an important role that carries a lot of responsibility, and it is therefore always important that you seek professional legal advice if you are ever unsure about your role and responsibilities, or if a decision you have made as an attorney has been challenged.

Unsure of your responsibility as attorney?

Whether you want to clarify your position as an attorney, or you’re looking to name someone as your attorney in your Lasting Power of Attorney (LPA), here at Kew Law we have decades of experience to help ensure your legal documents are drawn up according to the law and to meet your expectations.

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