Are you an attorney for an LPA? Do you know what’s expected?

Thu 5th Jan 2017

Has someone asked you to be an attorney for their Lasting Power of Attorney (LPA)? These are your responsibilities:

I’ve been asked to be an attorney. What do I need to do now?

  • Make sure you understand what an LPA is

    A Lasting Power of Attorney (LPA) gives a person or group of people the authority to make key decisions on behalf of someone who has ‘lost capacity’. The individual who makes the LPA is called the ‘donor’. There are two types of LPA. One covers health and welfare issues and the other focuses on property and financial affairs. For more details see my previous blog on how to set up an LPA.

  • Find out whether or not you are the sole attorney

    Do you know if you are the sole attorney, or if you will be one of a group of attorneys? Ensure you know who the other attorneys are and find out if you have to act jointly, or if you would be able to make independent decisions should one of the attorneys be unavailable. LPAs can be set up differently and it will simplify things later if you understand these details now.

  • Ask questions about the donor’s wishes

    It is likely that a family member– perhaps one of your parents – has asked you to be an attorney. They have probably chosen you because you are familiar with their beliefs and have an understanding of what they would want. However, it is worth having a conversation about any particular wishes they might have. For example, would they want to be resuscitated in the event of their heart stopping during a serious illness? While these can be difficult conversations to have, they will help you feel more confident in your ability to make the right decisions should they lose capacity in the future.

When will I need to carry out my duties as an attorney?

This will depend on whether you are acting within a property and financial LPA, a health and welfare LPA, or both. A health and welfare attorney can only act when the donor loses capacity, while a property and financial affairs attorney can step in before this happens. Losing capacity means that an individual has been deemed incapable of making their own decisions, usually as a result of an accident or injury or a condition such as dementia.

What will I need to do if my loved one loses capacity?

  • Act in the donor’s best interests and assume they have capacity

    As an attorney you are expected to have regard for the Mental Capacity Act Code of Practice. This means always acting in the donor’s best interests. Some people with conditions like Alzheimer’s have ‘good days’ and ‘bad days’, so their ability to make decisions may fluctuate and wherever possible, they should be given the opportunity to make choices for themselves. As an attorney you could play a key role in supporting the person to communicate their wishes. Thinking that a donor is acting unwisely is not enough reason for you to try to stop them from making a decision. Remember that we all have our own preferences and values.

  • Understand your duties

    Attorneys are bound by duties including as keeping the donor’s affairs confidential and not profiting from being an attorney. Your lawyer should be able to explain these to you and address any of your concerns.

  • Access information

    Ensure you have access to all the information you need to make informed decisions. This may include medical records or bank statements.

  • Understand the limits of your role

    If you are a health and welfare attorney, your role will not cover a donor’s property and financial affairs and vice versa.

When does my duty as an attorney end?

Your duty automatically ends when the donor dies. You should then send the original LPA and death certificate to the Office of the Public Guardian. However, if you wish to end your role as an attorney at any other point you need to inform any other attorneys and the donor and ensure your solicitor updates the LPA.

Are there any pitfalls?

There may occasionally be disagreements between a group of attorneys. If you are concerned that the decision of another attorney is not in the best interests of the donor, you should first of all raise this with the other attorney. If this does not resolve things, you should contact the Office of the Public Guardian for guidance.

If someone suspects that you are not carrying out your duties properly, you could be investigated by the Office of the Public Guardian. Unfortunately these cases are increasingly rapidly, many as a result of alleged theft.

For advice on any aspect on Lasting Power of Attorney please contact the team on 0800 328 3282 or email info@coodes.co.uk

Thu 5th Jan 2017

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