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When someone takes out a Lasting Power of Attorney (the donor), they appoint one or more attorneys to carry out their wishes. These can be for welfare issues such as care and support or financial issues should the donor lose mental capacity to make their own decisions.
If you are the attorney for a friend or family member, you have a number of important responsibilities and may have to make some difficult decisions about that person’s welfare and well being as well as their finances. That’s why it is so important to understand what is entailed when it comes to being an attorney.
It’s important to note that being appointed an attorney under a property and financial affairs LPA does not give you the authority to make health and welfare decisions, and vice versa; though you can be appointed as an attorney under both kinds of LPA.
The team at Swansea Legal Solutions has come up with these guidelines to make sure those who are asked to become an attorney are comfortable with these responsibilities.
General Responsibilities of an Attorney
The responsibilities of an attorney will vary in each individual donor’s LPA. The donor’s explicit wishes will be outlined in the LPA and will include the decisions the attorney will be able to take, and under what circumstances these decisions will need to be made (usually when the donor no longer has the mental capacity to act for him or herself).
Being an attorney can involve difficult decisions about issues surrounding the donor’s healthcare like if he or she should move to a care home for example. They can also involve making decisions about the donor’s finances including tasks such as claiming benefits on their behalf or dealing with taxation issues.
If you feel uncomfortable making these decisions on behalf of the donor then you should not take on the role of the attorney. This could happen if you are a close family member of the donor or if you may not have the time to take on these responsibilities when the time comes.
Legal Responsibilities of an Attorney
If you are prepared to accept the role of an attorney, then there are some very specific legal responsibilities which you are signing up to and you will be required to sign a statement confirming that you understand these responsibilities which 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
- Helping the donor to make their own decisions where possible, rather than simply taking control.
It is very important to note that, you could be ordered to compensate the donor for any losses they suffer if you do not perform your duties as an attorney properly. You could also face criminal charges if you ill-treat or wilfully neglect the donor.
When do the Responsibilities of an Attorney Begin?
You cannot act as an attorney under an LPA until it has been registered with the Office of the Public Guardian. You can only act as an attorney if the donor lacks the mental capacity to make the decision him or herself.
For example, If you have been appointed an attorney under a health and welfare LPA, you can only make decisions regarding ‘life-sustaining’ treatments if the LPA specifically says so. An LPA may also include further restrictions on the decisions you can take, for example that you cannot make gifts if you are attorney for a financial LPA.
It’s a good idea to discuss with a donor what their exact wishes are. It’s also a good idea to consult with friends or family members if you are the sole attorney. If more than one attorney is appointed, then you will probably need to make the decisions together.
If you are only authorised to act if the donor lacks mental capacity, you will need to check whether the donor has the capacity on a decision-by-decision basis. For example, the donor might be capable of making small decisions (such as what to wear), but not complex decisions about where to live or managing financial issues.
If you are unsure whether the donor has capacity, you should get an expert opinion (eg from a doctor).
Swansea Legal Solutions
At Swansea Legal Solutions we are able to help with the process of creating LPA’s and registering the document with the Office of the Public Guardian. We are also able to help donors and attorneys work together to ensure the LPA is written according to the donor’s wishes and that the attorneys have a clear understanding of their roles.
To find our more click here or call a member of our team on 01792 420844.
