Becoming an Attorney for someone means taking on the responsibility to either help them make decisions, or to make decisions on their behalf when they lack the capacity to do so.
Lasting Powers of Attorney (LPAs) are associated with a person’s ‘property and affairs’, and ‘health and welfare’, and regardless of which area it is, Attorneys are required, under the Mental Capacity Act, to make decisions in the person’s “best interests”.
If you’ve been appointed as someone’s Attorney, you need to think about what the person would have decided to do should they have been able to make the decision for themselves, and what factors they would take into account.
It also means thinking about some of the big issues – such as their values and beliefs – eg their political and religious views. This may be uncomfortable for you as they may not be aligned with your own.
The Office of the Public Guardian has produced some useful Guidance Notes for ‘getting started as an Attorney’, however the most important consideration is to discuss with the ‘Donor’ of the LPA (the person for whom you will be acting), any specific guidance they might wish to give you. This might include:
- Levels of treatment they would/would not wish to receive, and whether they would wish to be resuscitated
- Selling or renting out their property if they need to live in residential care
- The authority to view their Will to ensure you do not inadvertently sell anything they had gifted in their Will
- Who you should consult in terms of making decisions regarding their investments
The donor can leave guidance in the LPA documents to cover these issues, but if they have not and you did not have this discussion before they lose mental capacity, you need to think back to any conversations you may have had in the past with the person, and whether they expressed opinions on various topics that can feed into your decision-making process. If you’re not sure of their feelings on a subject, then you might need to explore this with family members and friends. You could also discuss with professional care givers such and doctors.
Where possible, involve the person themselves (the Donor) in the process. Even if they are unable to communicate fully, they may be able to indicate through their behavior how they feel about something.
We typically think of Attorneys in relation to elderly relatives, but it could also relate to someone who has experienced an accident or illness that has left them mentally incapacitated, even if only temporarily. If you believe the person may regain capacity, it is worth considering deferring decisions until that point.
Although it might sound contradictory, you don’t need to make the same decision the Donor would have done if they had capacity. That’s because when someone has capacity, they are free to make foolish or risky decisions. It also doesn’t have to be the decision that you would make for yourself. Your objective is to make the decision which you believe is in their “best interests”, taking into account all of the above.
Undoubtedly some decisions will be easier than others, and sometimes there will be disagreements. Family members may have different recollections of the wishes of the person who lacks capacity. They may even disagree with the views of the professionals on a treatment plan. It may be necessary to hold a meeting with everyone involved to consider all of the issues and to hopefully resolve it.
Ultimately though, if you are an Attorney you have to take responsibility to weigh up all of the information and make the decisions you believe are in the Donor’s “best interests”.
Heir Tight Wills helps clients put in place robust provisions and valid documents, to protect their loved ones and their assets both during their lifetime and after their death. For more information on Attorney responsibilities or to get your own LPAs drafted, contact Rachael Rodgers on 0845 519 7585, or CONTACT US via email, for a FREE Consultation.
