Our Amye Aris deals with this often asked and important question - what is the role of an Attorney?

We have seen a large increase in new client enquiries asking us to prepare and register Lasting Powers of Attorney documents on their behalf.  But what does it mean to be appointed as someone’s Attorney, and what are your legal duties in that role? Our Amye Aris explains more.

If you have been appointed as an Attorney for someone under a “Lasting Power of Attorney” you can legally make decisions on their behalf, stepping into their shoes and acting as if you were them. The person who has appointed you is known as the ‘Donor’.

The decisions that you take on behalf of the Donor will depend on whether you have been appointed under:

• An LPA for Property and Financial affairs; or
• An LPA for Health and Welfare.

Attorneys must always act in the best interests of the Donor and must follow the principles laid down in the Mental Capacity Act 2005. These principles are set out in Section 8 of both types of LPAs. The Donor and all Attorneys appointed must read these principles and understand them fully before agreeing to act on behalf of someone else in the role as an Attorney.

The principles of the Mental Capacity Act

There are 5 main principles which are:

• The Attorney must assume that the Donor can make their own decisions unless it is established that they cannot do so;
• The Attorney must help the Donor to make as many of their own decisions as they can. They must take all practical steps to help the Donor to make a decision. They can only treat the Donor as unable to make a decision if they have not succeeded in helping the Donor to make a decision through those steps.
• The Attorneys must not treat the Donor as unable to make a decision simply because the Donor makes an unwise decision.
• The Attorneys must act and make decisions in the Donor’s best interests when they are unable to make a decision.
• Before the Attorneys make a decision or act for the Donor, they must consider whether they can make the decision or act in a way that is less restrictive of the Donor’s rights and freedoms but still achieve the same purpose.

Registering the Lasting Power of Attorney

The LPA must be registered at the Office of the Public Guardian before it can be used by the Attorneys.

The role of an Attorney differs according to which LPA you have been appointed under

If a Donor has appointed you as an Attorney (either solely or jointly with other Attorneys) under a Property and Financial Affairs LPA you are required to make decisions about all financial aspects of the Donor’s life including paying their bills, managing their bank accounts. You even have the ability to buy and sell property on the Donor’s behalf. You must keep records of all financial decisions made on their behalf and who you have consulted in coming to that decision.

If you have been appointed as an Attorney under a Health and Welfare LPA you will need to make decisions about the Donor’s care, daily routines, accommodation, and you may have been provided with instructions about consenting to or refusing medical treatment.

Expenses and reimbursement for the work carried out as an Attorney

Unless you have been appointed as an Attorney in a professional capacity such as a Solicitor or Accountant, you are not entitled to charge for the work you do on behalf of the Donor as their Attorney. You can however be reimbursed for expenses that you incur in carrying out your role, which includes hiring a professional for things like filling in the Donor’s tax return, your travel costs, postage, phone calls or stationery etc.

The benefits of acting as an Attorney

When a loved one needs to appoint an Attorney to act on their behalf it is often already too late to do so. This is because the Donor must retain the mental capacity to appoint people to act on their behalf. If they have lost the mental capacity to make their own decisions, and no LPA is in place, then the alternative is an expensive and lengthy application to the Court for a Deputyship Order. This process involves the Court appointing a ‘Deputy’ in the stead of an Attorney to do much the same work as Attorney could have done for their loved one, had an LPA been in place.

Lasting Powers of Attorney should be looked at as an insurance policy, there and ready to go so that the Attorney can step in at short notice and assist the Donor when they are at their most vulnerable.

It is a honour to be trusted enough to be asked to act as anybody’s Attorney, and it is never too early to get these in place.

Should you wish to find out more about being appointed as an Attorney for someone under a Lasting Power of Attorney or entering into a Lasting Power of Attorney yourself you can contact our friendly and helpful LPA solicitors today on 01908 542 677 or email us on [email protected]