If you are providing a Lasting Power of Attorney (LPA) service to a client (who will be the Donor), then it’s important they and whomever they choose as Attorney(s) fully understand the role.
The role of an Attorney could vary greatly and it’s essential that before agreeing, all aspects are carefully considered. It may be that the services of the Attorney are never required as the Donor never has that need, but in the event they do then the Attorney must understand what they are committing to.
Being an Attorney is a legal agreement that must be registered with the Office of the Public Guardian (OPG) and be validated.
An LPA may appoint two Attorneys, in which case they will need to work together on some decisions, as required in the LPA.
Being an Attorney may require difficult decisions to be made for healthcare issues (should the donor be moved into residential care) or financial issues (dealing with taxes and payments on the donors behalf) and although some expense can be claimed, it is an unpaid role.
If the chosen Attorney does not feel equipped to do the role or they may not have the capacity (in the event they are needed) then they should state so as soon as possible, as later on things can get complicated if the Donor no longer has the ability to mentally deal with changing Attorneys.
As an Attorney, legal responsibilities include:
- Acting in the donor's best interests and taking reasonable care when making decisions on their behalf.
- Acting in accordance with the terms of the LPA (see below).
- Helping the donor to make their own decisions where possible, rather than simply taking control.
- More detailed information about Lasting Power of Attorney responsibilities is available in the Mental Capacity Act Code of Practice.
- The Attorney will be required to sign a statement confirming they understand their legal responsibilities.
The Power of an Attorney does not allow for:
- Unlimited authority to make decisions on behalf of the donor
- The changing of the Donor’s Will
- Ill-treatment or neglect of the Donor
- To incur losses for the Donor due to poor ability to perform duties
If an Attorney is appointed under a Property and Financial Affairs LPA they cannot make decisions about Health and Welfare and vice versa for a Health and Welfare LPA.
There could be further restrictions or wishes placed in an LPA by the Donor and these need to be taken into consideration before any decision is made. The Attorney can take advice o n a decision, such as a Financial Adviser or a medical expert, but decisions cannot be deferred to someone else. If need be the Court of Protection can become involved in the decision-making if the matter becomes complex.
Triggering an LPA
A Property and Financial Affairs LPA can be triggered whilst the Donor has mental capacity if stated within the LPA, for example if the Donor leaves the country for a long period of time and requires someone to act on their behalf in their absence.
But for a Health and Mental LPA then only when the Donor no longer has mental capacity can an Attorney start making decisions.
The Mental Capacity Act Code of Practice is a useful resource to point people in the direction of if required.
BTWC provide support, training and full guidance on LPAs - just contact us now for more information 01522 500823