Being asked to act as someone’s Attorney if they require assistance with the financial or personal affairs is a significant responsibility but what does it actually entail and what are your responsibilities?
When you are appointed as an Attorney you are granted the legal authority to look after the Donor’s affairs and have an overriding legal duty to act in their best interests. There are two types of Lasting Powers of Attorney (LPAs), property & Financial Affairs and Health & Welfare and your responsibilities depend on the type of LPA in question:
Property and Financial Affairs Attorney
Property and Financial Affairs LPA enables you to manage the Donor’s finances either together with the Donor if they only require a little assistance or on behalf of the Donor if they have lost their mental capacity.
These financial affairs will include:
- Their money and bills (Including any bills that need paying for their care).
- Any savings they have in bank and building society accounts.
- Their property (Including their home if they live in a property they own) and investments.
- Their benefits, including pensions and care benefits for which they may qualify.
Health and Welfare Attorney
As a health and welfare attorney, you can make decisions about the person’s:
- Daily routine such as washing, dressing and eating.
- Medical care.
- Living arrangements such as whether they live at home or move into a care home.
- Life sustaining treatment such as resuscitation or life support.
- Mental capacity
Often a key consideration is if the Donor has lost their mental capacity to manage their own affairs. There are guidelines to help you work out whether someone has the mental capacity to make a decision. Someone is unable to make a decision if they can’t understand the information needed to help them make the decision, even when it is given in a way which meets their needs, for example, by using simple language or sign language. An Attorney should consider if the Donor can take part in that specific decision and can the Donor:
• Remember the information given to them
• Use or weigh up the information to help them make a decision
• Communicate their decision in any way
Your duties as an attorney
When you are appointed as an Attorney, you are placed in a position of trust – you may only do what you have been authorised to do, and you must always act in the best interests of the individual you represent.
It may not always be absolutely clear what constitutes the best interests of the individual for whom you are acting, and they may have given you specific instructions to follow, but these guidelines will help:
- Do everything you can to encourage the individual to participate in the decision.
- Consider their past and present feelings, especially any expression of the wishes they made, such as an Advance Statement.
- Consider any of their beliefs and values that could influence the decision
- Talk to other people, such as family, carers or friends who know about their feelings, beliefs and values and can suggest what might be in their best interests.
- Always remember other people’s rights to privacy.
- Make sure that you know about any exceptions, such as if the individual has made an advance decision to refuse any medical treatment.
Can I get paid for my time acting as an Attorney?
Professional Attorneys acting in the course of their employment, such as Solicitors, can charge for their services but if you are not acting in a professional capacity, for example acting as a family member or friend you are unable to charge for your time. You are normally able to recover out of pocket expenses incurred in acting but there can be limitations on this and so it is best to discuss this with the Donor at the time they ask you to be an Attorney.
Being appointed an Attorney under a Business LPA has the additional responsibility of making decisions in relation to the Donor’s business affairs. The role of business Attorney has additional requirements and considerations relating to the operation of the business and in the case of a Ltd company, needs to be carried out in conjunction with the Company Memorandum, Articles of Association and potentially Shareholder Agreements. If the Donor was required to hold any specific professional qualifications the Attorney will also be required to hold those or impact on their ability to act as an Attorney.
Coles Solicitors has a strong team of professionals who specialise in Lasting Power of Attorneys and provide advice on both creating LPAs and advising Attorneys in acting in their role. Please call 0800160 10 10, contact our local office or email firstname.lastname@example.org to make an appointment for further advice.