Lasting Powers of Attorney - The role of the ATTORNEY - UK
Are you asked to be an Attorney and are you wondering what this really means? Are you currently concerned you do not know what to accomplish?
This article explains your role and answers some key questions.
Lets start with what is expected of you as an Attorney.
FAQ's
1. What does a lawyer have to do?
An Attorney is anyone who has the authority to make decisions and act someone's behalf.
So, you'd be likely to make decisions and perform tasks with respect to the person who signed the Lasting Power of Attorney.
The next information should provide you with a good understanding of purpose of an LPA, but first, a little more background.
2. Who can be an Attorney?
Anyone over 18, you can be a relative or friend and folks frequently ask their spouse to accomplish it. Normally it is someone they trust and who knows them reasonably well. It is possible to select a professional attorney who'll be paid for their service.
3. When do I actually have to accomplish something? When do I become the attorney?
If the person with the LPA becomes too ill to look after their own affairs, you then as the attorney can begin to make decisions and manage their affairs for them.
We call this losing capacity. You lose capacity for anyone who is struggling to make decisions.
4. How can I tell if someone has lost capacity?
Often medical staff will be the first to declare that someone has lost capacity. But you should still consider for yourself whether you think they are able to make a decision. The law gives help with decision making:
Are they struggling to understand information relevant to the decision?
Can they retain that information?
Can they weight that information as part of the process of making the decision?
Can they communicate it (whether by talking, using sign language or any means)?
It might be that the incapacity is only temporary, nevertheless, you may still be necessary to make decisions for them if they are incapacitated for a short time.
There is more info partly 3 of the Mental Capacity Act Please bear in mind that the reason behind the incapacity could be physical or mental, it could be due to accident, illness or for another reason. The most important thing is if they are "incapacitated".
Should you be unsure, you need to get further advice. Talk to medical professionals who are treating the one who made the LPA.
Please note that no matter if the person is making unwise or unexpected decisions, you may not trust them but it doesn't mean they lack capacity. Remember, it is possible to only act if they are no longer in a position to make decisions.
As an attorney you should try to help the person who signed the LPA to make their own decisions if possible.
Useful information on the capacity to make decisions can be found in the Mental Capacity Act Part 3
5. What decisions may i make? What does "manage affairs" mean?
The first thing you need to do is consider the LPA document. You can find two types and you may be an attorney under one or both types of LPA.
Lasting Power of Attorney - Health and Wellbeing or,
Lasting Power of Attorney - Property and Financial Affairs.
If you are a Attorney under a Health and wellness LPA you may be asked to make decisions about various aspects of the persons personal life. For instance, you will be asked to create decisions on what medical treatment they receive or where they are to live, even what they eat and wear. You'll only do this if the donor has lost the capacity (ability) to help make the decisions for themselves.
Should you be and Attorney under a house and Financial Affairs LPA you can create decisions about money and property, it is possible to settle payments, collect benefits and also sell the persons home for them. You need to use authority this at any time, the individual making the LPA does not need to possess lost capacity.
6. Doesn't this give me lots of responsibility?
Yes, it does. You're in a very privileged position to help someone you look after. The LPA gives you the power to access someone else's money and property and make intimate decisions over their personal lives.
However, you cannot abuse your position. You are legal ly bound to always act in the persons NEEDS. This means it is possible to only act on their behalf and you also cannot make any decisions that are not in their best interests. You must also take reasonable care when making the decisions.
For guidance on what "needs" means, you should look at Part 4 of the Mental Capacity Act.
Checklist:
Gets the LPA been properly stamped by the Office of THE GENERAL PUBLIC Guardian? The LPA must have been completed and registered with the Office of the general public Guardian before you do anything being an attorney.
Go through LPA document.
Look at any restrictions in the LPA has the person written anything inside it? Look at page 6, section 5 of the LPA and make sure you comply with these restrictions. At section 6 the donor may have given the Attorneys guidance. That is does not have to be followed but should offer you a concept of what the donor could have wanted should they still had capacity and it may help you select what is in their best interests.
Does the document let you make decisions alone or must you make them with another person "jointly"? You must ensure you adhere to these directions. If it says "severally" because of this each attorney can act separately to the other attorney(s). Consider the LPA on page 5. You should make sure that you can communicate with any other attorneys, especially where need to make decisions together.
Are you clear on your own role and responsibilities? Or even, check out chapters 4 and 5 of the Code of Practice of the Mental Capacity Act.
7. What happens easily have to spend my own money?
As a donor you're always entitled to claim your reasonable out-of-pocket expenses that you incur with the person. You should always keep an archive and receipts for these expenses.
The donor may decide to pay a professional attorney because of their services, in which particular case this will be detailed in the LPA on page 6 at section 7.
8. Do I need to be an Attorney?
No, you don't. It will always be better to tell someone that you don't want to do it at the time they are making the LPA, so that they can choose someone else. If you withdraw later it could cause many problems and lots of confusion.
9. Can I operate a bank account for the donor (person who signed the LPA)
Yes, you can if the LPA is a Property or Financial Affairs LPA. Always look at the guidance and restrictions in the document. Also make sure that you only use their money for his or her best interests.
If you are managing a bank account for another person and locating the bank isn't being helpful, then have a look for the "British Bankers Association Guidance for Consumers". It offers guidance to you and the bank to help the attorney to gain access to an account. You might wish to take it to the bank to remind them of their role.
10. Can I act on behalf of a parent, child or friend who has completed but not registered the Lasting Power of Attorney?
No, unfortunately it doesn't matter how much you look after them or just how much they would like you to help. It must be registered or you will not have the authority you have to conduct their affairs. In these circumstances you will unfortunately have to apply to the Court of Protection for the authority to do something. They have to make a decision who should help plus they usually place restrictions on the role of the attorney.