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“I’ve been named as an attorney, but what do I have to do?”
This is a common question that crops up when someone learns they’ve been selected to act as an attorney for a family member or friend.
An attorney has many responsibilities and it’s important to understand what’s required from the outset to ensure you’re able to fulfil the role as best as you can.
You don’t need any qualifications but you should be diligent, honest, responsible and conscientious and have the ability to make decisions about someone else’s finances or healthcare when they don’t have the mental capacity to do so themselves.
Attorneys are legally bound by the Mental Capacity Act 2005 to always act in the best interest of the donor. An LPA must be registered with the Office of Public Guardian (OPG) before an attorney can act.
What does an attorney make decisions about?
First, you need to establish whether you’ve been chosen to look after finances or health.
Property & Financial Affairs LPA
Attorneys can deal with issues such as banking and financial accounts, property, paying the bills, checking pensions and investments, any benefits being claimed or available to claim, plus the taxman.
You can act straight away once the LPA is registered with the Office of Public Guardian, even if the donor still has mental capacity.
Attorneys should aim to get as much information as possible about where financial or property records are stored, such as title deeds, as well as their future wishes regarding any properties they own – will these be sold or rented out if they need to move into a care home?
You may also be able to make gifts on the donor’s behalf, but there are strict rules. Giving a gift that doesn’t fit within your level of authority granted in the LPA means you will have to apply to the Court of Protection for permission.
Banks and other organisations will need proof of the verified LPA before you can make transactions or sign on the donor’s behalf. Keep an accurate record of all income and outgoings and ensure the donor’s accounts are kept separate from their own.
Health & Welfare LPA
This only comes into force when the donor has lost mental capacity. The donor can specify in the LPA the scope of an attorney’s power, such as whether they can consent to life-sustaining or life-prolonging treatment.
An attorney will make decisions relating to day-to-day care including arranging medical and dental appointments, exercise and dietary requirements, where they will live and with whom, and long-term care plans. If you don’t already know their wishes or likes/dislikes, try to find out while they still have mental capacity.
Attorneys will also be the one who complains on behalf of the donor should any care or treatment not be up to standard. However, they don’t have the power to demand that the donor is given any medication or treatment that medical professionals don’t believe is necessary or advantageous. Attorneys should ensure they have contact details of any primary care providers and, vice versa, make them aware that they are acting as an attorney.
What if someone challenges a decision?
Attorneys must make all decisions themselves or with other joint attorneys. They cannot delegate to others unless authorised to do so. Sometimes, people close to the donor may disagree with a decision or believe an attorney is acting outside of their powers or not in the donor’s best interest. They should first raise their concern with the attorney. If it is not resolved, they can submit it to the OPG with supportive evidence.
Do attorneys get paid?
Generally, non-professional attorneys, i.e., family and friends, don’t get paid for their time. However, a donor can specify in the LPA whether they will be. Attorneys can be reimbursed any out-of-pocket expenses such as travel costs or postage.
What if I want to stop being an attorney?
You cannot give up being an attorney on a temporary basis; you’re either in or out, I’m afraid.
If you decide that being an attorney is not for you, you can apply to be removed. However, this could leave the person who appointed you in a vulnerable position if there are no replacement attorneys.
For more information about LPAs or the role of an attorney, call Yorkshire Rose Wills on 01226 107111 for a chat or to book an appointment at their office or your home.