What is the role of a Lasting Power of Attorney?

Woman walking down a dirt road

A Lasting Power of Attorney (LPA) is a legal document that lets a person appoint one or more other people as ‘attorneys’, to make decisions on their behalf should a time come when they are not in a position to make decisions for themselves. This most commonly occurs after an accident or illness which affects a persons mental capacity. 

If you agree to act as an attorney for someone you know, then you are taking on a role of significant responsibility and power. Depending on the type of LPA drawn up, you may need to make decisions on their behalf relating to their finances, their welfare and other health issues.

It is therefore important to think very carefully before agreeing to take on this role.

If you are someone who has been asked to be an attorney, then you must also consider very carefully whether you feel able to take on a role of such responsibility and understand exactly what the role involves. Only then should you agree to take it on.

Types of Lasting Power of Attorney 

There are two types of LPAs, and these are:

  1. Health and Welfare LPA: this allows you to name someone whom you would like to make decisions about your healthcare on your behalf when you no longer have the capacity to.
  1. Property and Financial LPA: this allows you to name someone to deal with your finances and property when you are no longer able to do this yourself.

Duties of an Attorney

When an individual (the “donor”) makes what is known as a Lasting Power of Attorney, they appoint one or more people who are entitled to make important decisions on their behalf should there come a time when they are no longer able to make them on their own.

There are very many responsibilities covered by Lasting Power of Attorney, which include;

  • Acting in the donor’s best interests. You must ensure that you safeguard the needs of the person who has appointed you as their attorney, and ensure that you act in their best interests at all times. 
  • Assume that the donor has mental capacity. As an attorney you must first always assume that the donor is able to make the decision for themselves and only take the decision away from them if the evidence clearly shows they cannot. 
  • Keeping their possessions separate from yours. You must be careful that you do not mix your possessions with those of the donor. This is because it is your responsibility to keep them in trust and not misuse them in any way. If you combine or mix their money or investments with yours, you may end up spending what is not yours, and this is a breach of the Power of Attorney.
  • Helping the donor to make their own decisions where possible. You must also be in a position to offer advice where a donor is still about to exercise some control over their decision making, rather than just trying to seize control of decisions from them. At all times you are required to act on their behalf and in their best interests. You must adhere very strictly to the wishes of the donor. Where the donor articulates their wishes to you when they still have mental capacity, with regards to what they require you to do for them, you are bound by the rules of the LPA to adhere to any such wishes. You must always put their best interests at heart.
  • Choose the least restrictive decision. Anyone making a decision on behalf of a donor should consider all the possible alternatives and choose the one that is the least restrictive of the donor’s rights and freedoms.
  • Allow the donor to make ‘unwise decisions’. A donor shouldn’t be treated as unable to make a decision just because they may have made a decision you don’t personally agree with. 

If you are a named as an attorney in a Health and Welfare LPA, you are authorised to make decisions in the best interests of the donor on matters that include:

  • their daily routine, for example washing, dressing and eating
  • medical care
  • whether they should move into a care home
  • whether they should receive life-sustaining treatment

It can only be used when the donor is unable to make their own decisions because they have lost the mental capacity to do so. 

If you are named as an attorney in a Property and Financial Affairs LPA, you are authorised to make decisions in the best interests of the donor on matters that include:

  • managing a bank or building society account
  • paying bills
  • collecting benefits or a pension
  • selling their home

It can be used as soon as it’s registered, with the donor’s permission.

When making any decision as an attorney, you must:

  • do everything possible to encourage the donor to participate in decisions
  • consider their past and present expressions of their opinion and wishes on matters
  • talk to those people who are closest to the donor, such as their family, carers or friends, who may be able to tell you about their feelings, beliefs and values
  • always keep in mind the donor’s right to privacy 
  • give the donor time to make a decision for themselves if their mental capacity comes and goes

Here are some things that you’re not allowed to do:

  • You cannot act on the LPA issued to you by a donor, unless the document has been registered under the Office of the Public Guardian. This is the office responsible for all LPAs and an LPA must be registered accordingly having followed all of the instructions laid out by the office in order for the LPA to become valid. Otherwise, it is null and void.
  • You cannot act on a Health and Welfare LPA until such a time as the donor lacks the mental abilities to make their own decisions. Otherwise, you are not allowed to implement it in any way. You may act on a Property and Finance LPA before that time, if you have been granted permission by the donor. 
  • The LPA may also restrict your duties to business-related transactions only, such as selling and buying of properties and this is the only time you are allowed to implement the LPA. Other than that, it becomes illegal for you to do so.

How do you know when a person lacks mental capacity?

In most cases, you cannot and will not be called to act as the donor’s attorney until such a time as they lack the mental capacity to take decisions for themselves, but how do you know when this time has arrived?

In other words, what is ‘mental capacity’?

Mental capacity

Mental capacity is a legal definition and if someone has mental capacity, it means that they have the ability to make and communicate decisions at the time they need to be made.

To have mental capacity, a person needs to be able to understand the decisions they are being asked to make, why they need to make them, and what the consequences, risks and benefits are of the outcomes from those decisions. 

It is important to note that needing more time to understand or communicate a decision does not mean a person lacks mental capacity. All possible time and opportunity should be given to someone to demonstrate they have the ability to take a decision for themselves before they are declared unable to do so. 

It should also be noted that mental capacity isn’t a fixed state.

It is possible that a person can perfectly well decide what they want to eat or wear that day, but cannot make decisions about their healthcare.

Similarly, people’s ability to make decisions can change from day-to-day. If a person is incapable of making a decision on one particular day, then the decision should be delayed until they are able to regain their capacity, wherever possible. 

Who decides whether a person has mental capacity?

Anyone – a health or care professional, solicitor, relative or carer – who helps the donor with their life may need to decide whether a person has the capacity to make a particular decision.

In many everyday situations, that may be predominantly the donor’s family and carers.

When a more complex legal, medical or financial decision needs to be made, a more formal assessment may have to be made and this may involve doctors or other professionals.

At all times, those doing the assessing must follow the principles laid out in the Mental Capacity Act. 

Are you the right person to be an attorney in a Lasting Power of Attorney?

Taking on the role of an attorney may involve making difficult decisions about issues such as whether the donor should be moved out of their own home and into residential care, whether life-sustaining treatment should be withdrawn or withheld, or what the donor’s money should be spent on. You may have to spend time dealing with complex tax issues and claiming benefits on behalf of the donor. It can be a very time consuming role, and one which is emotionally draining too.

If you do not think you have the expertise, or the time to take on the responsibilities of being someone’s attorney, you should say so.

It might be a difficult conversation but it is definitely better than accepting the role only to have to resign it when the donor may not be in a position to choose somebody else that they would like. 

Do you get paid for being an attorney?

Although you are entitled to claim reasonable expenses for the role, it is not a paid job (unless you are a professional attorney).

Conclusion

If you are someone who is looking to make a Lasting Power of Attorney, it can be a very positive step towards ensuring you retain some control over your life, even if you can foresee a time when you will no longer be able to take decisions for yourself. However, you must give considerable thought to who you think would be a suitable attorney, considering all the factors mentioned above.

If you are someone who has been asked to be an attorney, then you must also consider very carefully whether you feel able to take on a role of such responsibility and understand exactly what the role involves. Only then should you agree to take it on. 

If you feel you require more information on what a Lasting Power of Attorney is and what the role of the attorney entails, then speak to a solicitor who will be able to advise you fully. 

Do you require a Power of Attorney?

Click your age below to get started

Under 40 Years 40 - 49 Years 50 - 59 Years 60 - 69 Years 70+ Years
1 Shares:
Leave a Reply

Your email address will not be published. Required fields are marked *

You May Also Like