Before you say yes to acting as an attorney do you really know what is involved and what this could mean for you? Saying yes and signing the forms is the easy bit! It may not be as simple as you think.
The duties of an attorney appointed under a lasting power of attorney are set out in the Mental Capacity Act 2005. They state that an attorney must:-
assume that a donor, the person making the lasting power of attorney, has capacity to make their own decisions unless it is established the donor cannot do so
not treat the donor as unable to make decisions unless all practicable steps to help the donor have been taken without success
not to treat the donor as unable to make decisions because the donor makes an unwise decision
make decisions and act in the donor's best interests when the donor is unable to make a decision
consider whether the decision which needs to be made can be made in way which is less restrictive of the donor's rights and freedoms whilst achieving the same purpose
These five rules and the governing principles which should underpin any decision or action you take as an attorney.
It is extremely important that you get to know the person you are looking after in respect of their assets and liabilities, their wealth and their thoughts and feelings in relation to their personal welfare. You may be asked to act as a financial attorney or in relation to health and welfare decisions. If you do not know what assets and liabilities the donor has or what they want to happen to them you will not be able to make an informed decision. It is key that you consider the donor's past and present wishes, feelings, religious beliefs, cultural, moral or political views when exercising your judgment. You should make sure you are aware of anyone close to the donor that you may need to speak to when considering a decision which needs to be made. You may also need to argue your reasoning behind a decision if it is challenged or there is a disagreement.
You will owe a duty of care to the donor in respect of the decision you make and must ensure that you are not in a position of conflict or find yourself in a situation which could be construed as taking advantage of the donor. Think carefully about any situation which could impact on you acting in the best interest of the donor before signing the lasting power of attorney. If you think this may arise it might be better for you to decline the appointment.
You will not be able to delegate any functions you must undertake. This means that you have to make all decisions and cannot ask anyone to make decisions or take actions on your behalf. There are some purely administrative tasks which may be limited exceptions to this rule.
Your role as attorney will begin once the lasting power of attorney has been registered with the Office of the Public Guardian. However, this may not mean you have to act. Whilst a donor has capacity to make decisions in relation to their financial affairs they can continue to do so, although they may ask you to help with certain things. You will not be able to act as a health and welfare attorney until the donor has lost capacity. You will therefore need to have an awareness of how to assess capacity and how capacity varies for different decisions which need to be made.
All of this is even before you start to act. When you do act there are certain things that you cannot do. You cannot ignore guidance or instructions included in the lasting power which appoints you. You cannot ignore the thoughts and feelings of the donor which have been communicated to you. You cannot mix assets that belong to you and the donor. You cannot make gifts, deal freely with investments, make a will for the donor or act in their shoes as a trustee. You are not able to consent to marriage or d
ivorce, exercise the right to vote, consent or refuse treatment for a mental disorder or be a party to the restriction of liberty of the donor.
Apart from this it should be all plain sailing! Or should it? Acting as an attorney can become a full time job. Some of the issues which come up during a person's life are very complex and may take considerable time and energy to resolve. Even the lodging of the lasting power of attorney with the asset and liability holders can take an enormous amount of time to complete. You should think about acting as an attorney as a job, either part time or full time. It can put undue pressure on your family relationships and your professional work life so make sure you find out exactly what is involved before you say yes.
If you do choose to act then remember Argo is always here to help in your role as attorney or to provide advice and support as you go. You only have to ring!