A guide for Attorneys

A guide for Attorneys

Due to Covid 19, a lot of people will have spent some time in the past 7 months shielding. This would have inevitably caused a lot of stress and uncertainly to those who were unable to go out to conduct their daily business, including their financial affairs.

For some of the people shielding, their predicament would have been a lot easier by relying on their Attorney’s to deal with their day to day finances if they were unable to go out to banks or building societies.

It would have been a very difficult time for Attorney’s who for some, may have never acted in their capacity of an Attorney before.

We often get asked, “What is expected of an Attorney. What can they do?”. We have put together a helpful guide to assist you in acting as an Attorney.

• As an Attorney you must follow the principles of the Mental Capacity Act. You must assume that the person you are helping (the donor), can make their own choices and decisions until it is established that they can’t. You must encourage and support the donor to make their own decisions. You must remember, the donor can make unwise decisions, even if you don’t agree with them. You cannot assume they do not have capacity to make a decision just because you do not think it is the right decision.
• When the donor is no longer able to make decisions, you must always act in their best interests when making decisions for them.
• You must always act in the least restrictive way to preserve the donor’s rights, dignity and freedom.
• You must follow the instructions and consider any preferences that the donor has included in their Lasting Powers of Attorney (LPA) documents. Remember, they created their LPA’s when they had capacity and the ability to consider what they would want should they lose capacity. As such, their guidance and instructions should be followed and respected.

Property and financial affairs

• You must keep the donor’s money separate from your own. You should not put their funds into your account as this could quite easily become mixed up with your own money. The exception to this would be if you already had a joint account for example, that is in both of your names.
• Before using the LPA, you need to provide a copy to the bank or building society. The copy will need to be certified and a solicitor can do this for you. You will need to also provide proof of your name and address.
• As a Property and financial affairs attorney, you can also make decisions relating to benefits and pensions, household bills, care bills, taxes, investments and property.
• You can give gifts on the donor’s behalf on occasions such as birthdays, weddings and Christmas. You can also make donations to charity in keeping with what the donor used to do for themselves. However, you must not make gifts or donation if doing so would mean that they couldn’t afford to pay for things they needed themselves or put them into financial difficulty.
• You can buy and sell property, but it is always best to get legal advice before doing so.
• Keep an updated record of the donor’s assets, income and what you are spending their money on.

Health and welfare

• You can make decisions about medical care, where the donor lives, what meals they have and how the dress and the like. However, you can only make decisions for the donor when they no longer have capacity.
• You can use the donor’s money to buy things to support them to have a meaningful life, for example, going on holiday or buying a comfortable new bed, or paying to have regular haircuts.
• The donor, when creating the LPA would have either given you the power to consent to or refuse life sustaining treating, or in the alternative, they would have reserved this power for the medical professionals only, meaning you do not have the power to make these decisions. It is important to check the LPA and make people aware of your powers, such as GP’s, care staff, social workers and other medical professionals involved in the donor’s care.
• Keep a record of all key decisions you make relating to medical treatment and care.

If you are an Attorney and you would like some guidance, or if you would like to make Lasting Powers of Attorney for yourself, then we are here to help. You can contact our Private Client department on 01206 577676 or email [email protected]