Someone you know has approached you to be their attorney, but what exactly is involved?
If you’ve been asked to be an attorney in a Lasting Power of Attorney document, you may be unsure what is expected of you. It’s important to realise that it is a position of some responsibility and you need to understand what you’re getting yourself in for. You will need to be happy to make important decisions about either the finances and property, or health and welfare (or both) of your loved one or friend.
Although you can reclaim reasonable expenses, the role is unpaid (unless you are a professional attorney).
If the idea of taking on these lasting power of attorney responsibilities seems like too much – for example, if you do not think you have the expertise, or the energy – you need to let the donor know before the paperwork is signed. If you give up the role at a later date, it could prove difficult for the donor if they’re no longer be in a position to make other arrangements. For example, if they’ve lost mental capacity.
What authority and responsibilities do you have as an attorney?
Your authority will depend on whether you are the attorney for a finance and property LPA or a health and welfare LPA (or both).
Finance and property LPA
– Paying bills
– Collecting pension or benefits
– Managing a bank account
Health and welfare LPA
– Making decisions about where the donor lives
– Making decisions and organising day-to-day care, diet and what the donor wears.
– The power to accept or refuse life-sustaining treatment on behalf of the donor. This needs to be specified on the LPA form.
What is mental capacity?
Mental capacity is the ability to make your own decisions. If they lack mental capacity, it means they cannot do any or all of the following:
– Understand information given to them.
– Retain information long enough to be able to make a decision.
– Weigh up the information available to make a decision.
– Communicate their decision.
A lack of mental capacity can be caused by dementia, a stroke or brain injury, mental health problem, a learning disability, confusion, drowsiness or unconsciousness because of an illness or the treatment for it or substance or alcohol misuse.
Making decisions for someone who lacks capacity
When it comes making a decision for someone who lacks capacity, this can vary from day to day, and from person to person, and even after an LPA has been registered you must assume that the donor has the capacity to make decisions themselves unless you establish that they can’t.
In the case of dementia, mental capacity can fluctuate. You can have ‘good’ days and ‘bad’ days, where on one day, the person may seem very lucid and able to make decisions, while on other days they can’t.
It’s important that you look at each decision, and assess the person you’re making for on a “case-by-case” basis. And don’t assume that because they are unable to make a decision about whether they should be selling their house, that they cannot make a decision on what they want to eat or wear that day.
Duty of care and acting in best interests
As an attorney, you need to remember that your primary duty is to act in the best interests of the person with dementia. If you fail to do this, you may have to be prepared to explain your actions if a complaint is made against you.
The Mental Capacity Act 2005 contains Codes of Practice which set out the duty of care of an attorney when making decisions on behalf of the donor, and include:
• The promise to carry out directions that the donor has made in their LPA
• A duty not to delegate your powers under the LPA unless the LPA says you can
• Not to benefit yourself but to benefit the donor
• A duty of good faith by acting with honesty and integrity
• Keeping the donors affairs confidential unless the donor has specified otherwise
• Complying with directions from the Court of Protection
• Not giving up your role without discussing it with the donor first if possible
When taking into account the best interests of the donor, you need to think about their past and present wishes, their beliefs and values, any views they’ve expressed in the past, the views of family members and carers, the possibility that the donor may regain their capacity and any other factors that may be specific to the person’s circumstances.
Cost and payment for acting as an attorney
You can’t be paid for being an attorney (unless you are a professional such as a solicitor), however, you can claim expenses while acting as an attorney. You’ll need to keep your receipts and invoice the donor and you can claim for travel costs, stationery, postage and phone calls.
However, if the person you’re acting as an attorney for is family (for example, your mother, father or spouse), you may feel charging them for expenses is perhaps inappropriate.
You will also need to ensure that you keep up-to-date accounts and records that are separate to your own accounts.
Using solicitors and professional organisations as attorneys
Some people choose a professional attorney, such as a solicitor, for their financial LPA. If you do this, you must name an individual. You can’t just give a job title or the name of a firm. Professional attorneys usually charge fees, so find out what they will be and make sure you add instructions to your LPA about what you’ve agreed to pay them.
If you have very complicated financial affairs, or you don’t have anyone suitable to manage your finances for a property and financial affairs LPA, then you may want to use a trust corporation as an attorney. This is usually a commercial bank or firm of solicitors. If you do this, find out what fees they’ll charge and get legal advice from another solicitor.
You cannot use a corporation to act as an attorney for a health and welfare LPA.
How to find out if someone has an attorney or deputy acting for them
If you’re not sure if someone has an attorney or deputy acting for them, you can find this out by contacting the Office of the Public Guardian. You will need to complete an OPG100 form, which will allow you to search the register for free.
Using Lasting Power of Attorney with a bank
If you are the attorney for a Finance and Property LPA, you will need to deal with various financial issues of the person with dementia. This could be either when the person still has mental capacity, or only once they have lost mental capacity and the ability to make decisions.
You will not be able to start dealing with a bank on behalf of someone who has set up an LPA until it has been registered with the Office of the Public Guardian.
The bank or building society will need to see the following things before you can start to manage the financial affairs:
– The filled in and signed LPA form, registered with the Office of the Public Guardian (OPG). This must be the original document or a copy which the OPG has stamped every page of and which the donor or a solicitor has signed every page of to confirm that it is a true copy of the original.
– Proof of the attorneys’ and the donor’s names and addresses (for example passport, driving licence, utility bills).
When using a Finance LPA, there is a distinction between the powers you will have if the person still has capacity, and the powers you have once they have lost capacity, and you’ll need to make it clear each time you come to use the LPA. For example, if they still have capacity, they may still be able to write cheques and receive statements and correspondence, but if they lack capacity, everything (including all letters and correspondence) should be dealt with by the attorneys.
If the person with dementia has multiple bank accounts, this process will have to be done at each bank.
Different banks will have different policies on what you can and can’t do as an attorney and when the person has capacity or doesn’t. Most will give you telephone and online access to the donor’s account, as well as give instructions in branch and sign cheques. However, this can vary.
You can apply for a new ISA on behalf of the donor, as well as opening a new savings account, but borrowing is discouraged.
Research carried out by the consumer website Which? (January 2015) has shown that not all banks will give telephone or online access to power of attorney accounts. In fact, there can be inconsistency about the availability of a debit card or an overdraft facility depending on where the bank account is held. If any of these facilities are important to you, check with the different banks to establish what access they offer. If your donor’s bank won’t offer them, you might have to think about moving the account to one that does.
If you have a joint account with someone who has dementia and who has lost mental capacity, the bank or building society can decide whether or not to temporarily restrict the use of the account to essential transactions such as living expenses, residential care bills or medical costs. This could be restricted until a deputy has been appointed or a power of attorney has been registered. This is a good reason why you should set up an LPA before the person with dementia loses mental capacity. If a LPA or Enduring Power of Attorney is already in place, the bank should allow the attorney (and the joint account holder with capacity) to use the account.
Need help filling out Lasting Power of Attorney documents? Unforgettable can help! We’ve created an online questionnaire to help you fill out your LPA and cover off any issues related specifically to dementia and the challenges it can present. Click here for more information.