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Katherine Head

Later Life Team Assistant - Brighton & Hove

What are your legal duties as an Attorney?

There are a range of very important legal duties as an Attorney that you need to be aware of and it goes without saying that being appointed as a person’s attorney for their Property & Financial Affairs or Health & Welfare is a role of much responsibility.

Legal duties as an Attorney requires you to act with integrity to ensure that the wishes of the donor are undertaken effectively and with care. Guidance online can be helpful yet lengthy, so below is a short guide on the do’s and don’ts for acting in your role as attorney.

Always act within the authorities stated within the Power of Attorney

The basic boundaries of what you are able to do and not able to do will be stated in the donor’s Lasting Power of Attorney. All Lasting Powers of Attorney give the donor the opportunity to include preferences and instructions in how they wish their attorneys to act for them. They may also advise on when the document should be used (immediately or only once capacity has been lost), and with Health & Welfare documents, will also specify about life sustaining treatment. These decisions made by the donor lay out the parameters in which the attorney should be acting. For example, if two attorneys are appointed jointly, but do not consult each other for each decision made, they are not acting within the authority stated within the Power of Attorney.

Read our blog on everything you need to know about Powers of Attorney here

Legal duties as an Attorney requires you to act in accordance of the principles of the Mental Capacity Act 2005

The Mental Capacity Act 2005 is a lengthy piece of legislation which covers all aspect of Mental Capacity law. It is however important to have knowledge of its main principles, so that these can be applied in your day-to-day role as attorney. The Mental Capacity Act 2005 can be found here. The main principles of the act are as follows:

  • A person must be assumed to have capacity unless it is established that he lacks capacity.
  • A person is not to be treated as unable to make a decision unless all practicable steps to help him to do so have been taken without success.
  • A person is not to be treated as unable to make a decision merely because he makes an unwise decision.
  • An act done, or decision made, under this Act for or on behalf of a person who lacks capacity must be done, or made, in his best interests.
  • Before the act is done, or the decision is made, regard must be had to whether the purpose for which it is needed can be as effectively achieved in a way that is less restrictive of the person’s rights and freedom of action.

Keep the finances of the donor separate from your own

Even when acting as attorney for your spouse, it is important that the donor’s funds are dealt with independently from your own and are kept separate at all times. It is important that as an attorney you can show that you are acting with honesty and integrity. Keeping your money separate from the donor’s means that you can show that you have made all payments from their money for their own costs, and alleviates you from any possible concerns of mismanagement of funds.

Keep good records

Good record keeping is the backbone of managing funds as a Property & Financial attorney. You should keep all statements, receipts and invoices in good order. These can then be produced not only to assist you in your role as attorney going forwards, but also in situations such as providing proof of funds to a care home or request funding from the local authority.

Help the donor make their own decisions where possible

It is important to remember that your legal duties as an attorney is not to simply take over every aspect of a person’s affairs. If the donor retains mental capacity and you are appointed under a Property & Financial Affairs Lasting Power of Attorney, you must act under their guidance to support them in managing their own affairs. Even with concerns about mental capacity, you must always try and help the donor to make their own decisions as far as possible. If they cannot do so, you must then ensure that any decision you make on their behalf is in their best interests.

If you are appointed as an attorney for Health & Welfare, you will not be able to act in your role until the donor has lost mental capacity to make these decisions for themselves. Any decisions you do make once the donor has lost mental capacity must be made in their best interests, taken from what you know about the donor’s former opinions and wishes, and any other evidence which may support a particular decision.

What authority do I have if my family member has no Power of Attorney?

All the time someone has mental capacity, we all have the ability to support them in their day to day lives. This can mean assisting with their shopping, supporting them to complete paperwork independently or becoming a third party on their bank account to assist with banking jobs.

However, nobody has any authority to make decisions on anyone’s behalf in relation to financial matters without the correct legal documentation in place. There are three forms of legal documentation that can be used:

  • An Enduring Power of Attorney, which should be registered with the Office of the Public Guardian if there are any concerns about the donor’s capacity
  • A Lasting Power of Attorney, which requires registration with the Office of the Public Guardian to be used at all
  • A Deputyship Order, which must be granted by the Court of Protection on behalf of an incapacitated person.

If your family member does not have one of the above, it may be worth chatting to them to find out why not and to explain the implications of what might happen if they lose capacity and have nothing in place. Without legal authority under a Power of Attorney, you will not be able to carry out any tasks on their behalf, and a Deputyship application to the Court of Protection can be lengthy and expensive.

What do I do if I feel that an attorney, or unauthorised person, is acting in a financially or otherwise abusive way?

If you have concerns about the treatment of a vulnerable person, you should get in touch with the Office of the Public Guardian on t. 0300 456 0300. The Office of the Public Guardian can give advice, carry out an investigation, give guidance on how to replace attorneys or appoint replacement representatives via the Court of Protection, and will be able to liaise with the Police about their findings in more serious cases.

Everyone will have seen high profile cases of attorneys choosing to misuse their power as an attorney. Offences include misappropriation and theft of the donor’s finances, or misuse of power under a Health & Welfare document leading to neglect of a vulnerable person. However, even those attorneys with the best intentions can sometimes make the incorrect choices and act unwittingly outside their authority. It is therefore imperative that good conduct is considered at all times when acting as attorney, and due research is undertaken so the best relationship can be enjoyed between the attorney and donor.

Contact us about your legal duties as an Attorney

Rix & Kay has a specialist Later Life Team that deals with all aspects of Powers of Attorney. If you would like an informal chat about your circumstances then please contact Katherine Head e. katherinehead@rixandkay.co.uk t. 01825 744434.