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Read more articles in: Blog, Private Client, Rachel Blackburn

I’ve been named as an attorney. Now what?

A Lasting Power of Attorney (LPA) is a legal document that allows someone (the donor) to appoint one or more individuals (attorneys) to make decisions on their behalf if they lose the capacity to do so themselves.

There are two types of LPA:

  • One for financial decisions
  • One for health and welfare decisions

The financial decisions LPA enables you to manage the donor’s finances, such as banking, paying bills, and handling investments.

The health and welfare LPA allows you to make decisions about the donor’s daily care, medical treatment, and living arrangements.

Designating both to the same individual, at the same time, is generally the norm but is not always the case.

As you’re no doubt aware, being named as an attorney is a significant responsibility.

The donor has placed immense trust in you to manage their affairs or make critical decisions about their health and welfare.

This moral and ethical trust goes hand in hand with the legal obligations that come with it.

As such, seeking advice from a solicitor is crucial throughout the process of becoming and acting as an attorney.

Your solicitor can provide you with invaluable guidance, ensuring you understand your legal obligations and how to fulfil them correctly.

We can also help you navigate the complexities of the LPA itself, offer advice on making decisions that align with the donor’s best interests, and assist in managing any disputes or challenges that may arise.

Your legal obligations

As an attorney, your core legal duties include acting in the best interests of the donor, considering their past and present wishes, and ensuring you do not benefit personally from your position.

You must make decisions that reflect what the donor would have wanted if they could make the decision themselves, to the best of your knowledge and ability, and you must always act with honesty and integrity.

If you’re an attorney for property and financial affairs, your responsibilities will involve managing the donor’s bank accounts, paying their bills on time, and, where appropriate, making investment decisions.

It’s essential to keep the donor’s finances separate from your own and to maintain a high level of transparency in all financial dealings.

(If the donor is in debt, you will not be personally responsible for this, but you may still need to make payments on their behalf).

For attorneys appointed under a health and welfare LPA, you’ll need to make decisions about the donor’s daily care, such as their diet, dressing, and housing.

You may also need to make significant decisions regarding medical treatments, including consenting to or refusing treatment on the donor’s behalf.

Some attorneys are appointed for both financial and health and welfare decisions.

In these cases, your roles will work concurrently, allowing you to make comprehensive decisions that cover all aspects of the donor’s life.

Maintaining detailed records of all decisions and transactions made on behalf of the donor is imperative, which could include records of financial statements, receipts, and notes on any decisions made regarding the donor’s health and welfare.

Your role as an attorney in practice

Your authority as an attorney does not commence immediately upon signing the relevant documents.

First, it’s essential to register the LPA with the appropriate Government body, a step that is mandatory before you can start making decisions on behalf of the donor.

However, the timing of when you can start acting on behalf of the donor also depends on the type of LPA and the donor’s capacity.

According to the Mental Capacity Act 2005 (and other relevant legislation), a person must be assumed to have the capacity to make their own decisions unless it is established that they lack this capacity.

For an attorney under a health and welfare LPA, you can only make decisions when the donor cannot make those decisions themselves.

This means that even after the LPA is registered, your authority to act only comes into play when the donor is deemed incapable of making a specific health or welfare decision at the time it needs to be made.

On the other hand, a property and financial affairs LPA can be structured to allow the attorney to act as soon as the LPA is registered, regardless of the donor’s capacity.

This flexibility allows for easier management of the donor’s financial affairs without the need to constantly assess their capacity, although whilst they still have capacity the donor will need to provide their consent for the attorneys to act.

However, it’s crucial to always act in the donor’s best interests and in accordance with their wishes as much as possible to remain within the law.

Maintaining open communication lines with the donor, their family members, and any involved professionals is also essential.

This collaborative approach ensures that the donor’s wishes and best interests remain at the forefront of any decisions made.

It also aids in understanding and respecting the donor’s views and preferences before they lost capacity, ensuring that decisions made are as close as possible to what the donor would have wanted.

Your role as an attorney may end for various reasons, such as the donor’s death, your decision to resign, or if the Court of Protection revokes the LPA.

Navigating through the complexities of acting as an attorney, especially in making decisions that align with the Mental Capacity Act 2005 and the specific stipulations of the LPA, underscores the importance of seeking professional legal advice.

Our solicitors are here to support and guide you through every step, providing the expertise necessary to manage your responsibilities effectively.

Whether faced with complex decisions or seeking clarification on your duties, we can help ensure that you fulfil your role with confidence and integrity, always prioritising the donor’s best interests.

Please get in touch for tailored advice or more information.

Mander Hadley

Mander Hadley Solicitors is not only a long established firm, but is vibrant and successful, with a forward thinking approach.