If you are either looking to create a Lasting Power of Attorney (LPA) for yourself, or if you have been asked to be the ‘attorney’ in an LPA , then it’s important to fully understand the role.
The role of an Attorney could vary greatly and it’s essential that before agreeing, all aspects are carefully considered. It may be that the services of the Attorney are never required as the the person who created the LPA (the ‘Donor’) never has that need, but in the event they do then the Attorney must understand what they are committing to.
Being an Attorney is a legal agreement that must be registered with the Office of the Public Guardian (OPG) and be validated.
Up to two Attorneys can be appointed in an LPA, in which case both will need to work together on some decisions, as required in the LPA.
Being an Attorney may require difficult decisions to be made for healthcare issues (should the donor be moved into residential care) or financial issues (dealing with taxes and payments on the donors behalf) and although some expense can be claimed, it is an unpaid role.
If you are the Attorney and you do not feel equipped to do the role or you may not have the capacity (in the event you are needed) then you should state so as soon as possible, as later on things can get complicated if the Donor no longer has the ability to mentally deal with changing Attorneys.
As an Attorney the legal responsibilities include:
- Acting in the donor’s best interests and taking reasonable care when making decisions on their behalf.
- Acting in accordance with the terms of the LPA (see below).
- Helping the donor to make their own decisions where possible, rather than simply taking control.
- The Attorney will be required to sign a statement confirming they understand their legal responsibilities.
The Power of an Attorney does not allow for:
- Unlimited authority to make decisions on behalf of the donor
- The changing of the Donor’s Will
- Ill-treatment or neglect of the Donor
- To incur losses for the Donor due to poor ability to perform duties
There are 2 types of LPA:
- Health and Welfare LPA
- Property and Financial Affairs LPA
If an Attorney is appointed under a Property and Financial Affairs LPA they cannot make decisions about Health and Welfare and vice versa for a Health and Welfare LPA. You can read more about these types of LPAs here.
As the Attorney you can take professional advice on a decision, such as a Financial Adviser or a medical expert, but decisions cannot be deferred to someone else. If need be the Court of Protection can become involved in the decision-making if the matter becomes complex.
Triggering an LPA
A Property and Financial Affairs LPA can be triggered whilst the Donor has mental capacity if stated within the LPA, for example if the Donor leaves the country for a long period of time and requires someone to act on their behalf in their absence.
But for a Health and Mental LPA then only when the Donor no longer has mental capacity can an Attorney start making decisions.
For advice and help and support in creating an LPA than contact our team of friendly advisers – call 01522 500823, or email firstname.lastname@example.org