Taking on the Role of an Attorney

If you are asked to become an Attorney, it is very important that you consider carefully if you want to take on the position.

You may feel that it is something you want to do or are obligated to do. However, remember that the role can be:

  • Rewarding
  • Time-consuming
  • Sometimes challenging

What is a Donor?

The person who appoints you is called the Donor. You should:

  • Discuss your duties and what will be expected of you fully with the Donor
  • Be very clear on how the Donor sees you acting for him/ her

This is important, because in the future you may have to make decisions concerning:

  • Where the Donor will live
  • Whether or not to sell their home
  • The type of medical treatment that they receive

Get as much guidance as you can

You should get as much guidance as possible regarding all matters from the outset.  If you are being appointed along with other Attorneys, you should clarify:

  • Exactly how you will work together
  • What your individual and joint responsibilities will be

Who can be appointed as an Attorney?

To be appointed as an Attorney under a Lasting Power of Attorney (LPA), you must be:

  • Over 18 years; with
  • With full mental capacity; and
  • Not be declared bankrupt (or the subject of an interim bankruptcy order)

The role begins from the moment you agree to act and sign the document.

What are my legal duties as an Attorney?

In terms of your legal duties, you must act in accordance with the five principles set out in the Mental Capacity Act 2005:

  • Every adult has the right to make their own decisions and must be assumed to have the capacity to do so unless proved otherwise;
  • A person must be given all practicable help before anyone treats them as not being able to make their own decisions;
  • Just because an individual makes an unwise decision, they should not be treated as lacking capacity to make that decision;
  • Anything done or any decision made on behalf of a person who lacks capacity must be done in their best interests;
  • Anything done for or on behalf of the person who lacks capacity should be the least restrictive of their basic rights and freedoms

Get to know the Mental Capacity Act Code of Practice

You must also be familiar with the Mental Capacity Act Code of Practice and have regard to it.  This describes the responsibilities of those who work with and care for adults who lack capacity.  It can be downloaded from the Office of the Public Guardian website (www.publicguardian.gov.uk).  Further information about the role of an Attorney can also be obtained from the website.

Is there anything else I have to do?

You should always:

  • Act in the Donor’s best interests
  • Ensure you act within the scope of your authority
  • Make sure you do no profit or acquire personal benefit from your position
  • Act in good faith
  • Comply with any directions from the Court of Protection

When can I make decisions on behalf of the Donor?

In order to start making decisions on behalf of the Donor:

  • The Donor must have consented to this (in the case of an unrestricted EPA); or
  • The document must be registered with the Office of the Public Guardian (if a restricted EPA or LPA) 

If you are appointed under a Personal Welfare LPA, then additionally, the Donor must have lost their mental capacity to make decisions. 

If you are appointed under a Property and Affairs LPA, you can act for the Donor, even if they still have their mental capacity, provided the Donor is happy for you to do so. 

When and why you should seek legal advice

  • If you are in any doubt as to when you are able to act, seek legal advice first
  • If you have to register an EPA or LPA, again seek legal advice
  • The process must be completed in a prescribed way
  • You may have to notify other members of the Donor’s family or friends of your intention to register the document 
  • The procedure does take a number of weeks and a Court fee is payable

Getting in touch

For more information, please contact David Endicott on 01295 204005 or email dendicott@se-law.co.uk