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Insights

15 June 2020

What does it mean if I agree to be someone’s Attorney?

A friend or family member has approached you to ask you to act as their attorney, you’ve successfully navigated your way through the less than simple signing procedure, and a letter from the Office of the Public Guardian has landed on your doorstep to confirm that the Lasting Power of Attorney has been registered - now what?

More and more people are making the very sensible decision to put Lasting Powers of Attorney (LPAs) in place to ensure their wishes are carried out in the unfortunate event that they are unable to act for themselves. The person making the LPA (known as the donor) may have received legal advice at the time but you more than likely did not, and you may be wondering what your responsibilities are.

Here are some of the most common questions we get asked and the key points you need to consider. However, it’s important to remember that every situation is different and it’s always worth getting advice on the particular situation at hand.

What decisions will I be making?

This depends on what type of attorney you have been appointed as. There are two types – one relates to the donor’s property and financial affairs and the other to health and welfare. You can be appointed to act as one or both types of attorney.

A property and financial affairs attorney makes decisions regarding the donor’s assets and finances. This can include buying and selling properties, managing investments, paying expenses and completing tax returns.

A health and welfare attorney makes decisions for the donor that relate to their health and well-being, such as where the donor lives, what they spend their time doing and what medical treatment they receive.  

I’ve just been appointed as an attorney – is there anything I should be doing now?

If you’ve been appointed as an attorney but you are not yet acting on the donor’s behalf, now is a good time to sit down with them and discuss what their wishes are. When you do come to act, you will be required to make decisions in the donor’s best interests given the circumstances at the time. The more you know now about the donor’s life and their wishes, the easier you may find it to make decisions on their behalf in the future.

When should I start to act?

If you are a health and welfare attorney, you cannot act until the donor has lost mental capacity to make their own decisions. If you are a property and financial affairs attorney, you might be able to act sooner than that, depending on how the LPA was drafted. In both cases, the LPA must be registered by the Office of the Public Guardian before you can act.

How do I know if the donor has lost mental capacity?

If you think the donor may be unable to make decisions for themselves, you must consider the following two-stage test:

  1. Does the donor have an impairment of their mind? Possible causes of such an impairment include dementia, a mental health illness, or a stroke. It could also be a temporary impairment, for example if the donor suffers an accident and is unconscious for a number of days (or even goes into a coma).
  2. As a consequence, does the donor lack the ability to make the relevant decision at the relevant time?

You should think about whether the donor can weigh up relevant information, make a decision, and understand the consequences of that decision. Just because the donor reaches a different conclusion to you does not mean they lack capacity.

It can be extremely difficult to judge whether someone has lost mental capacity. They may have capacity for some decisions but not others, or their capacity may fluctuate over time. It is sometimes necessary to obtain a mental capacity assessment, carried out by an experienced psychiatrist who is used to dealing with these circumstances.

Who do I need to consult before making a decision?

You must try to help the donor make their own decisions, so in the first instance you should take all practical steps to see if that is possible. If that fails, you will need to make decisions for the donor but that does not necessarily mean doing so in isolation. Any decisions you make must be in the donor’s best interests.

There may be more than one attorney appointed, in which case you should discuss matters with the other attorneys, although you might be able to act independently (if you have been appointed to act “jointly and severally”).

If you act as property and financial affairs attorney it may be necessary to discuss arrangements with the health and welfare attorney, and vice versa, for example if the decision relates to the donor’s living arrangements.

If you are the health and welfare attorney, you will likely make decisions alongside the donor’s doctor and any other healthcare or social workers that are involved in the donor’s life.

In both cases you may also want to discuss matters with the donor’s family and friends, as it can be extremely helpful to talk things through and hear suggestions from other people in the donor’s life.

What information about the donor can I access?

If you are a property and financial affairs attorney, you will be able to access the donor’s financial information (such as their bank account details) as if you were the donor themselves. In certain circumstances you may also be entitled to access the donor’s medical information if it relates to decisions you have to make, for example, paying for care or paying for somewhere for the donor to live. You are also usually entitled to see a copy of the donor’s Will so that you can take their testamentary wishes into consideration, although there are some exceptions to this.

If you are a health and welfare attorney, you will be able to access information about the donor’s health and welfare, such as their medical records and treatment plans. The donor’s doctors and other carers will discuss matters with you and should keep you updated regarding the donor’s health and well-being.

What can I spend the donor’s money on?

If you are a property and financial affairs attorney, you can use the donor’s money for their ordinary expenses, such as looking after their home and buying food. You can also make very limited gifts using the donor’s money. These can only be gifts made on certain special occasions (such as birthdays) to someone connected to the donor, or donations to charity if the donor has already made or might have been expected to make donations to that charity. In either case the value of the gift must not be unreasonable. What is reasonable will depend on all the circumstances, especially the size of the donor’s estate.

You must keep the donor’s money separate from your own (with some limited exceptions, for example if you already have a joint bank account with the donor).

If you are a health and welfare attorney you may also need to spend the donor’s money (for example to buy the donor clothes) but you will need to ask the property and financial affairs attorney for the relevant funds.

Can I be paid for acting as an attorney?

You can be reimbursed for your out-of-pocket expenses but cannot usually be paid, unless the LPA has been drafted to make financial provision for you.

What records do I need to keep?

You should keep a record of any important decisions you make, and what discussions you had with others when reaching those decisions.

If you are a financial and property affairs attorney, you must also record all of the donor’s income and expenses. It is extremely important to keep accurate records and evidence of all expenses incurred on the donor’s behalf. If there are any payments that cannot be explained satisfactorily or justified as being for the donor’s benefit, you could be asked to compensate the donor out of your own pocket.

What else should I look out for?

Always check the wording of the LPA itself, as the donor might have included additional preferences to be taken into account or instructions that must be followed.

If you think there might be another LPA in existence but can’t check with the donor (for example, because they are in a coma), you can apply to search the registers held by the Office of the Public Guardian. This will tell you if there are any other registered LPAs or registered Enduring Powers of Attorney (a type of power of attorney that can no longer be made, but those already in existence are still valid).

Why should I take on the role of attorney?

By accepting the appointment of attorney, you will be giving the donor great peace of mind, knowing that their affairs will be taken care of if anything happens to them. However it can at times be a challenging role, and we are here to help if you need advice regarding your specific circumstances.


For more information please contact Claire Walsh at claire.walsh@crsblaw.com or call +44 (0)1483 252 601. 

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