The duties and responsibilities of attorneys re powers of attorney. |
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Scott Walker writes about the duties and responsibilities of Attorneys
A Lasting Power of Attorney (‘LPA’) is an important and powerful document. It follows therefore, that a person appointed as an Attorney
under a LPA has a high level of responsibility. An Attorney owes a duty to the person making the LPA (known as the ‘Donor’) to act in their best interests.
Making a LPA is the only way to make plans for a time in the future when you may lack the capacity to make decisions for yourself.
It is important to distinguish the two different types of LPA; Property and Financial Affairs and Health and Welfare. Each LPA creates different powers which will affect the type of role that the Attorneys take, their duties and the decisions that they can make under the LPAs.
LPA – Property and Financial Affairs
A registered property and financial affairs LPA enables the Attorneys to make decisions about:
- Buying and selling property;
- Opening, closing and operating bank/building society accounts; and
- Claiming, receiving and using benefits, pensions and allowances.
(The above list is not exhaustive).
LPA – Health and Welfare
A registered health and welfare LPA enables the Attorneys to make decisions about:
- Giving or refusing consent to particular types of health care, including medical treatment decisions;
- Decisions about staying in your own home, perhaps with help and support from social services;
- Decisions about moving into residential housing and choosing the right care home; and
- Day to day issues, like diet, dress or daily routine.
(Again, the above list is not exhaustive).
For both types of LPAs, restrictions, conditions and guidance can be inserted into the document specifying the types of decisions that Attorneys can and cannot make, as well as clarifying their duties. An important distinction between the two types of LPA is that, once registered, a property and affairs LPA allows the Attorneys to use the LPA if the person making the LPA (the ‘Donor’) has got mental capacity as well as when they lose mental capacity (unless a restriction has been put into the document specifying that the LPA can only be used when the Donor lacks mental capacity). In contrast, once registered, a health and welfare LPA can only be used when the Donor lacks mental capacity to make decisions (or the Attorney reasonably believes the Donor lacks capacity).
Duties and Responsibilities
Attorneys have a duty to act based on the principles of the Mental Capacity Act 2005 and have regard to the Mental Capacity Act Code of Practice. They must follow these principles and cannot simply do whatever they like! An Attorney can also only make decisions
that the LPA authorises them to make.
In addition, Attorneys must make decisions and act in the best interests of the Donor. They also have a duty to keep accounts and financial records and produce them to the Office of the Public Guardian and/or to the Court of Protection on request. It is possible to obtain a copy of the Code of Practice from The Stationery Office at www.tso.co.uk or read it online at www. direct.gov.uk/mentalcapacity
Principles of the Act
Attorneys must follow the following principles under the act:-
1. They must assume that the Donor can make their own decisions unless they establish that the Donor cannot do so;
2. They must help to make as many of the Donor’s own decisions as they can. They cannot treat a Donor as unable to make the decision in question unless all practicable steps to help the Donor to do so have been made without success;
3. They must not treat a Donor as unable to make the decision in question simply because the Donor makes an unwise
decision;
4. They must make decisions and act in the Donor’s best interests when the Donor is unable to make the decision in question;
and
5. Before the attorneys make the decision in question or act, they must consider whether they can make the decision or act in
a way that is less restrictive of the Donor’s rights and freedom but still achieves the purpose.
Best interests
Attorneys must act in the Donor’s best interests in making decisions for them when they are unable to make the decision themselves. They must take into account all the relevant circumstances. This includes consulting with the Donor and others who are interested in their welfare. In deciding what is in the donor’s best interests, bear in mind:-
• their past and recent wishes;
• any views the donor has expressed in the past;
• their beliefs and values;
• the views of family members, parents, carers, etc;
• the possibility that the donor could regain capacity;
• any other factors that may be specific to a donor’s circumstances; and
• any guidance in the LPA or other written statement.
Other responsibilities of attorneys include:
• a duty of care when making decisions on behalf of the donor;
• to carry out instructions that the donor has made in their LPA;
• a duty not to delegate the powers under the LPA unless the LPA says that this is possible;
• not to benefit themselves but to benefit the donor – meaning that Attorneys should avoid any potential conflicts of interest and not to profit or benefit personally from the position other than where specified within the LPA;
• a duty of good faith – meaning that Attorneys should act with honesty and integrity;
• keeping the donor’s affairs confidential unless the donor has specified otherwise;
• to comply with directions of the Court of Protection;
• not to give up the role as Attorney without discussing it with the donor if possible;
• to keep the donor’s money and property separate from the Attorneys money and property;
• to keep accurate accounts in all dealings as an attorney.
Additional points to remember
Always bear in mind that the key objective at all times is the best interests of the donor. Even after registering the LPA, it should be assumed that the donor has capacity to make decisions themselves. The Donor should not be treated as unable to make a decision just because they make a decision which, in the Attorney’s opinion, is unwise.
An Attorney should only be making decisions for the donor when they:
• are incapable of making decisions for themselves;
and
• may be capable, but have asked the Attorney to make them on their behalf.
It is important to remember that the donor may have a gradually degenerating condition, or may have capacity on one day, but not on another. Therefore, an Attorney should consider assessing the Donor’s capacity from time to time and support the Donor in making as many decisions as possible for themselves.
An Attorney may consider, for example,
• whether the donor has all the relevant information they need to make a decision?
• could the information be presented or explained in ways that would make it easier for them to understand (e.g. by using pictures, photographs, sign language)?
• are there times of the day when the donor is most lucid?
• could the support of a third party (e.g. a relative or friend) help the donor decide?
If the donor disagrees with an Attorney’s decision, and the Donor has capacity, the Attorney must go with the donor’s view. If they lack capacity the Attorney can make the decision, bearing in mind that donors can inform the Office of the Public Guardian if they are unhappy about the Attorney’s decision-making (and the Office of the Public Guardian can ask you to explain your decisions). There may be occasions when an Attorney needs to obtain personal or confidential information about the donor from a doctor, bank, or solicitor. Provided the Attorney is acting within the powers of the LPA then this is appropriate. Attorney’s should only ask for information that is strictly relevant and maintain confidentiality where at all possible.
Decisions that an Attorney cannot make
An Attorney should always be aware of the decisions that they have not got the power to make under an LPA. For a property and affairs LPA, this will include:-
• making a will on the donor’s behalf (although the Court of Protection may authorise an Attorney to execute a Will for the Donor); and
• voting on the donor’s behalf
• access the donor’s will unless the donor has included a condition that an Attorney can. However, an Attorney can apply to the Court if they believe the will is essential in helping them carry out their role, and the person who holds the will refuses to show it to the Attorney.
In addition, there are restrictions on making gifts and an LPA only grants power to make gits in specific circumstances.
For a health and welfare LPA, decisions cannot be made about:-
• consenting to marriage or a civil partnership;
• consenting to a decree of divorce (or civil partnership dissolution) based on two years’ separation;
• consenting to sex;
and
• medical treatment for a mental disorder if the treatment is regulated by Part 4 of the Mental Health Act 1983.
It follows therefore, that a Donor should take great care in deciding who to appoint as their Attorney(s). The Donor should be confident in the Attorney’s ability to take on the responsibility that the role requires and, Attorneys should be trustworthy and reliable. It is possible to appoint family members or close friends as well as a professional Attorney. However, an Attorney acting in a professional capacity will normally charge for their work in that role. A person who is bankrupt cannot act as an Attorney under a property and financial affairs LPA, but can be appointed as an Attorney under a Health and Welfare LPA.
It is a good idea to appoint more than one Attorney to share the responsibilities and decision making. Attorneys can act together, together and independently or together in respect of some matters and independently in respect of others. In addition, consideration should be given to appointing replacement Attorneys, in the event that the first chosen Attorney(s) are unable to act.
November 2012
Disclaimer:
A Lasting Power of Attorney (‘LPA’) is an important and powerful document. It follows therefore, that a person appointed as an Attorney
under a LPA has a high level of responsibility. An Attorney owes a duty to the person making the LPA (known as the ‘Donor’) to act in their best interests.
Making a LPA is the only way to make plans for a time in the future when you may lack the capacity to make decisions for yourself.
It is important to distinguish the two different types of LPA; Property and Financial Affairs and Health and Welfare. Each LPA creates different powers which will affect the type of role that the Attorneys take, their duties and the decisions that they can make under the LPAs.
LPA – Property and Financial Affairs
A registered property and financial affairs LPA enables the Attorneys to make decisions about:
- Buying and selling property;
- Opening, closing and operating bank/building society accounts; and
- Claiming, receiving and using benefits, pensions and allowances.
(The above list is not exhaustive).
LPA – Health and Welfare
A registered health and welfare LPA enables the Attorneys to make decisions about:
- Giving or refusing consent to particular types of health care, including medical treatment decisions;
- Decisions about staying in your own home, perhaps with help and support from social services;
- Decisions about moving into residential housing and choosing the right care home; and
- Day to day issues, like diet, dress or daily routine.
(Again, the above list is not exhaustive).
For both types of LPAs, restrictions, conditions and guidance can be inserted into the document specifying the types of decisions that Attorneys can and cannot make, as well as clarifying their duties. An important distinction between the two types of LPA is that, once registered, a property and affairs LPA allows the Attorneys to use the LPA if the person making the LPA (the ‘Donor’) has got mental capacity as well as when they lose mental capacity (unless a restriction has been put into the document specifying that the LPA can only be used when the Donor lacks mental capacity). In contrast, once registered, a health and welfare LPA can only be used when the Donor lacks mental capacity to make decisions (or the Attorney reasonably believes the Donor lacks capacity).
Duties and Responsibilities
Attorneys have a duty to act based on the principles of the Mental Capacity Act 2005 and have regard to the Mental Capacity Act Code of Practice. They must follow these principles and cannot simply do whatever they like! An Attorney can also only make decisions
that the LPA authorises them to make.
In addition, Attorneys must make decisions and act in the best interests of the Donor. They also have a duty to keep accounts and financial records and produce them to the Office of the Public Guardian and/or to the Court of Protection on request. It is possible to obtain a copy of the Code of Practice from The Stationery Office at www.tso.co.uk or read it online at www. direct.gov.uk/mentalcapacity
Principles of the Act
Attorneys must follow the following principles under the act:-
1. They must assume that the Donor can make their own decisions unless they establish that the Donor cannot do so;
2. They must help to make as many of the Donor’s own decisions as they can. They cannot treat a Donor as unable to make the decision in question unless all practicable steps to help the Donor to do so have been made without success;
3. They must not treat a Donor as unable to make the decision in question simply because the Donor makes an unwise
decision;
4. They must make decisions and act in the Donor’s best interests when the Donor is unable to make the decision in question;
and
5. Before the attorneys make the decision in question or act, they must consider whether they can make the decision or act in
a way that is less restrictive of the Donor’s rights and freedom but still achieves the purpose.
Best interests
Attorneys must act in the Donor’s best interests in making decisions for them when they are unable to make the decision themselves. They must take into account all the relevant circumstances. This includes consulting with the Donor and others who are interested in their welfare. In deciding what is in the donor’s best interests, bear in mind:-
• their past and recent wishes;
• any views the donor has expressed in the past;
• their beliefs and values;
• the views of family members, parents, carers, etc;
• the possibility that the donor could regain capacity;
• any other factors that may be specific to a donor’s circumstances; and
• any guidance in the LPA or other written statement.
Other responsibilities of attorneys include:
• a duty of care when making decisions on behalf of the donor;
• to carry out instructions that the donor has made in their LPA;
• a duty not to delegate the powers under the LPA unless the LPA says that this is possible;
• not to benefit themselves but to benefit the donor – meaning that Attorneys should avoid any potential conflicts of interest and not to profit or benefit personally from the position other than where specified within the LPA;
• a duty of good faith – meaning that Attorneys should act with honesty and integrity;
• keeping the donor’s affairs confidential unless the donor has specified otherwise;
• to comply with directions of the Court of Protection;
• not to give up the role as Attorney without discussing it with the donor if possible;
• to keep the donor’s money and property separate from the Attorneys money and property;
• to keep accurate accounts in all dealings as an attorney.
Additional points to remember
Always bear in mind that the key objective at all times is the best interests of the donor. Even after registering the LPA, it should be assumed that the donor has capacity to make decisions themselves. The Donor should not be treated as unable to make a decision just because they make a decision which, in the Attorney’s opinion, is unwise.
An Attorney should only be making decisions for the donor when they:
• are incapable of making decisions for themselves;
and
• may be capable, but have asked the Attorney to make them on their behalf.
It is important to remember that the donor may have a gradually degenerating condition, or may have capacity on one day, but not on another. Therefore, an Attorney should consider assessing the Donor’s capacity from time to time and support the Donor in making as many decisions as possible for themselves.
An Attorney may consider, for example,
• whether the donor has all the relevant information they need to make a decision?
• could the information be presented or explained in ways that would make it easier for them to understand (e.g. by using pictures, photographs, sign language)?
• are there times of the day when the donor is most lucid?
• could the support of a third party (e.g. a relative or friend) help the donor decide?
If the donor disagrees with an Attorney’s decision, and the Donor has capacity, the Attorney must go with the donor’s view. If they lack capacity the Attorney can make the decision, bearing in mind that donors can inform the Office of the Public Guardian if they are unhappy about the Attorney’s decision-making (and the Office of the Public Guardian can ask you to explain your decisions). There may be occasions when an Attorney needs to obtain personal or confidential information about the donor from a doctor, bank, or solicitor. Provided the Attorney is acting within the powers of the LPA then this is appropriate. Attorney’s should only ask for information that is strictly relevant and maintain confidentiality where at all possible.
Decisions that an Attorney cannot make
An Attorney should always be aware of the decisions that they have not got the power to make under an LPA. For a property and affairs LPA, this will include:-
• making a will on the donor’s behalf (although the Court of Protection may authorise an Attorney to execute a Will for the Donor); and
• voting on the donor’s behalf
• access the donor’s will unless the donor has included a condition that an Attorney can. However, an Attorney can apply to the Court if they believe the will is essential in helping them carry out their role, and the person who holds the will refuses to show it to the Attorney.
In addition, there are restrictions on making gifts and an LPA only grants power to make gits in specific circumstances.
For a health and welfare LPA, decisions cannot be made about:-
• consenting to marriage or a civil partnership;
• consenting to a decree of divorce (or civil partnership dissolution) based on two years’ separation;
• consenting to sex;
and
• medical treatment for a mental disorder if the treatment is regulated by Part 4 of the Mental Health Act 1983.
It follows therefore, that a Donor should take great care in deciding who to appoint as their Attorney(s). The Donor should be confident in the Attorney’s ability to take on the responsibility that the role requires and, Attorneys should be trustworthy and reliable. It is possible to appoint family members or close friends as well as a professional Attorney. However, an Attorney acting in a professional capacity will normally charge for their work in that role. A person who is bankrupt cannot act as an Attorney under a property and financial affairs LPA, but can be appointed as an Attorney under a Health and Welfare LPA.
It is a good idea to appoint more than one Attorney to share the responsibilities and decision making. Attorneys can act together, together and independently or together in respect of some matters and independently in respect of others. In addition, consideration should be given to appointing replacement Attorneys, in the event that the first chosen Attorney(s) are unable to act.
November 2012
Disclaimer: