Our professional and helpful team can help you with Duties of an Attorney

If you have been asked to be an Attorney on someone’s Lasting Powers of Attorney (LPA), there are a number of factors you should consider before agreeing. There are a range of duties and responsibilities, set out in the Mental Capacity Act 2005 which you should be aware of and should familiarise yourself with.

As an Attorney, you will be responsible should the donor (that’s the person who you are responsible for) become unable to make decisions for themselves. It is vital that you always act within their best interests and consider their past and present, wishes and values.

There are also a number of principles which need to be kept in mind when acting on someone’s behalf. These are set out in section 1 of the Mental Capacity Act 2005, and are as follows:

Principle 1: You should always assume that everyone has the capacity to make their own decisions, unless it has been proved otherwise. This means that you cannot act on someone’s behalf unless a professional has stated that they are unable to do so.

Principle 2: A person should be given all the help and support possible to make their own decision before you step in and make it for them. They must have been asked to decide, before their lack of capacity is judged.

Principle 3: Just because someone makes an unwise decision, doesn’t mean that they lack the capacity to make it. We all make bad decisions at some point in our lives.

Principle 4: If decisions are being made on behalf of someone who lacks capacity, they must be in their best interests.

Principle 5: Any actions or decisions made on behalf of someone should have a limited impact on their rights and freedoms.

When making decisions for someone else, we always recommend that you speak to their close relatives, anyone who is caring for them, and any other Attorneys who may have been appointed. This not only helps to share the responsibility for the decision, but also creates a sounding board for the donor’s wishes.

You should also always check whether the donor has the capacity to make decisions themselves. Just because decisions have been made for them in the past, it doesn’t necessarily mean that they still need that service. An example could be where someone has recovered from a brain injury; during their recovery they may have needed assistance, but if they have recovered they could be capable of making their own choices. Additionally, you should remember that different Lasting Powers of Attorneys allow for different decisions over the donor’s affairs. An Attorney listed on a health and care LPA (Lasting Powers of Attorney), cannot make financial decisions, and vice versa.

There are other duties which should also be considered. These include;

• Applying a duty of care when making any decisions
• Carrying out the donor’s instructions (even if you disagree with them)
• To not take advantage of the situation for your own benefit
• To not delegate decisions, unless this has been authorised
• Always act in good faith
• Respect the donor’s confidentiality
• Comply with any directions from the Court of Protection
• Inform the donor and the Court if you intend to give up the role
• Keep accurate and up to date accounts
• Keep the donor’s money and property separate from your own.
  

If you have been asked to be an Attorney for someone, and you have questions, our team are always happy to chat to you.