It is not uncommon, not least as someone grows older and has legitimate concerns about losing the ability to manage their own affairs, for an individual to appoint another person to make certain practical decisions on their behalf. This is known as a Lasting Power of Attorney (LPA).
That said, if you have been appointed as an attorney under an LPA, perhaps to act for a parent or elderly relative, although you do not need to be a qualified lawyer, nor even have any legal experience, you will still need to understand the nature and extent of your statutory duties toward the donor.
What is the role of an attorney?
An LPA provides an attorney with the legal authority to act on behalf of the donor in the event that s/he is no longer able to do so, for example, where they are in hospital or otherwise incapacitated, or their ability to make their own decisions has been diminished by reason of illness, accident or disability.
The types of decisions you will make as an attorney will depend upon the nature of the LPA in place. This could either relate to the property and financial affairs of the donor and/or their health and welfare, where each type of LPA will provide the attorney(s) with different types of decision-making power.
A property and financial affairs LPA will give the attorney(s) the right to make all kinds of decisions on behalf of the donor, from collecting their pension to renting or selling their home, and can be used either whilst the donor still has mental capacity or in the event that this is lost.
In contrast, a health and welfare LPA will only come into effect once the donor is unable to make their own decisions, and can include anything from deciding on the donor’s daily routine to receiving life-sustaining medical treatment.
Further, if you are not the only appointed attorney, you will need to determine whether or not any decisions need to be made jointly, or jointly and severally, namely, where decisions can either be taken together or individually.
How should an attorney act?
An LPA will typically provide an attorney with the power to make important and often life-changing decisions about the donor’s future. As such, the attorney is duty bound to act in the best interests of the donor at all times.
However, even with the best intentions, it is all too easy for an attorney to inadvertently fall foul of the law, not least in failing to act within the scope of their authority and/or overlooking the express wishes of the donor. Accordingly, for the novice attorney, the following tips should never be overlooked:
Always carefully read the LPA to ascertain the extent of any decision-making power, including whether certain decisions should be made ‘jointly’ or ‘jointly and severally’.
Always follow any specific instructions or guidance provided by the donor in relation to certain decisions and, wherever possible, take into account any preferences the donor has included within the LPA.
Always help the donor in making their own decisions, allowing them plenty of time or explaining things in a different way, and do not delegate any decision-making to any unauthorised person.
When making a decision on the donor’s behalf, always have regard to what that individual would have decided if they could, including their past and present values and wishes, as well as any moral, political and religious views they are known to hold. You may want to consult with other relatives, friends or carers before reaching any important decisions.
Where a joint decision with other attorneys cannot be reached, you should seek independent advice from either the Office of the Public Guardian or a specialised advocate, or even consider mediation. In the event that a disagreement in relation to a serious issue cannot be resolved, you may need to make an application to the Court of Protection.
What if an attorney gets it wrong?
In the event that you fail to act in the best interests of the donor at all times, you may find yourself the subject of a complaint to the Office of the Public Guardian (OPG). The OPG is the government body responsible for monitoring the use of an LPA and attorney’s actions. Moreover, the OPG can also report concerns to other agencies, where appropriate, including the police or social services.
In circumstances where an attorney is found to have acted in their own interests, or otherwise contrary to the best interests of the donor, the Court of Protection can also be asked to intervene to remove the attorney or revoke the LPA.
Legal disclaimer
The matters contained herein are intended to be for general information purposes only. This blog does not constitute legal advice, nor is it a complete or authoritative statement of the law and should not be treated as such.
Whilst every effort is made to ensure that the information is correct, no warranty, express or implied, is given as to its accuracy and no liability is accepted for any error or omission. Before acting on any of the information contained herein, expert legal advice should be sought.
