Lasting Powers of Attorney - The role of the ATTORNEY - UK
Are you asked to be an Attorney and are you wondering what this really means? Are you concerned you do not know what to do?
This short article explains your role and answers some key questions.
Lets start with what is expected of you as an Attorney.
FAQ's
1. What does a lawyer have to do?
An Attorney is someone who has the authority to make decisions and act someone's behalf.
So, you'd be likely to make decisions and perform tasks with respect to the one who signed the Lasting Power of Attorney.
The next information should give you a good understanding of purpose of an LPA, but first, a bit more background.
2. Who can be a lawyer?
Anyone over 18, you will be a friend or relative and people frequently ask their spouse to do it. Normally it really is someone they trust and who knows them reasonably well. You can select a professional attorney who will be paid for their service.
3. When do I already have to do something? When do I become the attorney?
If the person with the LPA becomes too ill to provide for their own affairs, you then as the attorney can begin to make decisions and manage their affairs for them.
We call this losing capacity. You lose capacity for anyone who is unable to make decisions.
4. How do i tell if someone has lost capacity?
Often medical staff is definitely the first to declare that someone has lost capacity. Nevertheless, you should still consider on your own whether you think they are able to decide. The law gives help with decision making:
Are they struggling to understand information highly relevant to the decision?
Can they retain that information?
Can they weight that information within the process of making the decision?
Can they communicate it (whether by talking, using sign language or any other means)?
It could be that the incapacity is only temporary, nevertheless, you may still be necessary to make decisions for them if they are incapacitated for a short while.
There is more information partly 3 of the Mental Capacity Act Please bear in mind that the reason for the incapacity could be physical or mental, it may be due to accident, illness or for another reason. What is important is whether they are "incapacitated".
If you are unsure, you need to get further advice. Talk to medical professionals that are treating the person who made the LPA.
Please note that it does not matter if the individual is making unwise or unexpected decisions, you might not agree with them but it doesn't mean they lack capacity. Remember, you can only act when they are no longer able to make decisions.
As an attorney you should attempt to help the one who signed the LPA to make their own decisions if possible.
Useful information on the ability to make decisions can be found in the Mental Capacity Act Part 3
5. What decisions may i make? What does "manage affairs" mean?
The first thing you should do is consider the LPA document. There are two types and you'll be a lawyer under one or both forms of LPA.
Lasting Power of Attorney - Health and Wellbeing or,
STAMINA of Attorney - Property and Financial Affairs.
If you are a Attorney under a Health and wellness LPA you may well be asked to make decisions about various areas of the persons personal life. For example, you could be asked to create decisions on what medical treatment they receive or where they are to call home, even what they eat and wear. You'll only do this if the donor has lost the capacity (ability) to help make the decisions for themselves.
Should you be and Attorney under a house and Financial Affairs LPA you possibly can make decisions about money and property, you can pay bills, collect benefits and even sell the persons home for them. You should use authority this at any time, the individual making the LPA does not need to possess lost capacity.
6. Doesn't this give me plenty of responsibility?
Yes, it does. You're in a very privileged position to greatly help someone you care for. The LPA gives you the power to gain access to somebody else's money and property and make intimate decisions over their personal lives.
However, you cannot abuse your position. You are legal ly obliged to always act in the persons Best Interests. This means you can only act on their behalf and you cannot make any decisions that are not in their needs. You must also take reasonable care when making the decisions.
For guidance on what "needs" means, you should look at Part 4 of the Mental Capacity Act.
Checklist:
Gets the LPA been properly stamped by any office of The Public Guardian? The LPA must have been completed and registered with any office of the general public Guardian before you can do anything as an attorney.
Read through LPA document.
Look at any restrictions in the LPA has the person written anything inside it? Look at page 6, section 5 of the LPA and be sure you comply with these restrictions. At section 6 the donor could have given the Attorneys guidance. That is does not have to be followed but should give you an idea of what the donor could have wanted should they still had capacity also it may help you select what is within their best interests.
Does the document enable you to make decisions alone or do you have to make them with another person "jointly"? You must ensure you adhere to these directions. If it says "severally" therefore each attorney can act separately to the other attorney(s). Consider the LPA on page 5. It is advisable to ensure that you can communicate with any other attorneys, especially where need to make decisions together.
Are you clear on your own role and responsibilities? If not, have a look at chapters 4 and 5 of the Code of Practice of the Mental Capacity Act.
7. What happens easily have to spend my very own money?
As a donor you are always entitled to claim your reasonable out-of-pocket expenses that you incur with the person. It is best to keep an archive and receipts for these expenses.
The donor may decide to pay a professional attorney for his or her services, in which particular case this is detailed in the LPA on page 6 at section 7.
8. Do I must be an Attorney?
No, you don't. It is usually better to tell someone that you don't want to do it at that time they are making the LPA, in order to choose someone else. In the event that you withdraw later it could cause many problems and lots of confusion.
9. Can I operate a bank account for the donor (one who signed the LPA)
Yes, it is possible to if the LPA is really a Property or Financial Affairs LPA. Always consider the guidance and restrictions in the document. Also ensure that you only use their money because of their best interests.
If you are managing a bank account for someone else and finding the bank is not being helpful, then have a look for the "British Bankers Association Guidance for Consumers". It gives guidance to you and the bank to greatly help the attorney to gain access to an account. You might wish to take it to the lender to remind them of these role.
10. MAY I act on behalf of a parent, child or friend who has completed however, not registered the STAMINA of Attorney?
No, unfortunately no matter how much you care for them or how much they would like you to help. It should be registered or you will not have the authority you need to conduct their affairs. In these situations you will unfortunately have to connect with the Court of Protection for the authority to act. They have to decide who should help plus they usually place restrictions on the role of the attorney.