Advice for Attorneys

Being appointed as an Attorney is a privilege BUT can often be seen as a daunting task.

So, let’s take a look at some of our advice and top tips for Attorneys…

Responsibilities

As an Attorney, you can make decisions on behalf of the person that has appointed you as an Attorney (the Donor) BUT you must always act in their BEST INTERESTS.

As an Attorney you MUST:

  • assume that the Donor can make their own decisions unless it is established that they cannot;
  • help the Donor to make their own decisions and take practical steps to assist with this. Only if you are not successful with this, can you make a decision yourself;
  • not treat the Donor as unable to make a decision just because they are making a decision that you believe to be unwise;
  • make decisions and act in the Donor’s best interest;
  • make decisions or act in a way that is the least restrictive on the Donor’s rights and freedoms whilst still achieving the purpose.

Rights

Your rights as an Attorney may depend on HOW YOU HAVE BEEN APPOINTED and whether the Donor has stated any PREFERENCES AND INSTRUCTIONS within the Lasting Power of Attorney document. 

Where more than one Attorney has been appointed by the Donor then they have the choice to appoint the Attorneys to act:

Jointly & Severally

This is the most common option as it offers the most flexibility and allows the Attorneys to make decisions together, where possible or separately where it is not possible for all Attorneys to be together to make a decision.

This is particularly helpful where urgent decisions are required as is does not require all Attorneys to agree a unanimous decision.

This also means that the LPA will not be cancelled if just one Attorney can no longer act, where there are no replacement Attorneys named.

Jointly

Where Attorneys are appointed JOINTLY then ALL Attorneys must unanimously agree on a decision in order for it to be taken. If a unanimous decision cannot be agreed, then the decision cannot go ahead.

This could be difficult where Attorneys do not get on or cannot work together.

If one Attorney is unable to continue acting, or dies, then the LPA will be cancelled (unless there are Replacement Attorneys named) as where Attorneys are appointed JOINTLY, the law seems them as one unit, rather than as individuals.

Jointly for Some Decisions & Jointly and Severally for Other Decisions

With this option, the Donor can write specific preferences and instructions to the Attorneys as to what decisions must be made JOINTLY (unanimously) and the remaining decisions, that fall outside the scope of those specified by the Donor, can then be made either JOINTLY or SEVERALLY.

WHEN YOU CAN MAKE DECISIONS as an Attorney will depend on the Power given by the Donor.

In relation to Health & Welfare decisions, an Attorney can only act when the Donor no longer has capacity to make the decision for themselves (and this is assessed on a decision by decision basis.

In relation to Property & Financial Affairs, the Donor can choose whether an Attorney can act as soon as the LPA is registered or only after they have lost mental capacity.

Remember, your role as an Attorney is to EMPOWER the person that has appointed you as an Attorney and to help them make decisions for themselves or to take those decisions for them, in their best interest and as they would have done, had they been able to do so.

Remember, your role as an Attorney is to EMPOWER
the person that has appointed you as an Attorney and to help them make decisions
for themselves or to take those decisions for them, in their best interest
and as they would have done, had they been able to do so.

An Attorney must STOP acting if:

  • they lose mental capacity;
  • become bankrupt (if they are appointed as a Property & Financial Affairs Attorney);
  • become subject to a Debt Relief Order (if they are appointed as a Property & Financial Affairs Attorney);
  • they decide that they no longer want to act as an Attorney;
  • they were the husband, wife or civil partner of the Donor and have legally ended that marriage or civil partnership with the Donor.