Firstly, don’t panic! If you have been chosen, it’s because the person appointing you believes you have the skills and aptitude to do a good job.
What is a Lasting Power of Attorney?
A Lasting Power of Attorney (LPA) is a legal document. It’s put in place by someone (a ‘donor’) who wants to provide for their future by nominating a person, or a number of people, to make decisions on their behalf in the event that they become unable to do so. The LPA is made while the donor has mental capacity (they are recognised in law as being capable of making their own decisions) and the donor can specify that it applies immediately or that it will come into play if mental capacity becomes lost, perhaps through old age, illness or an accident.
We encourage our clients to think ahead and to make LPAs, as well as Wills. (In fact, ‘Lockdown LPAs’ are proving extremely useful at the moment, enabling elderly and vulnerable people who are isolating to call on the support of attorneys.) We also help people who have been appointed attorneys under LPAs understand their legal responsibilities and carry out their duties.
What do I have to do?
As an attorney, the first thing to establish is whether you have been chosen to look after the donor’s property and financial affairs (their home, outgoings, investments etc), or their health and welfare (including where the donor should live and what treatment they should receive). Although attorneys don’t need to have any particular qualifications, a donor will select the person they feel has a sufficient level of knowledge about them, their wishes, and the type of decision that will need to be made.
You should also establish whether you will be the only attorney, or if someone else has been appointed to make decisions with you. An LPA can specify that two or more donors should act jointly, which means every decision must be made together. Or the LPA can specify that decisions may be made jointly and severally – attorneys can act together or individually. Donors who insist on decisions being jointly made may take comfort from knowing that, as long as attorneys are on an equal footing and one is not significantly more domineering than another, decisions will be well considered. However, it may not always be plain sailing!
The central aspect of all of this is that, whatever decisions attorneys come to and however they are reached, those decisions must be in the best interests of the donor. As an attorney, you need to know exactly what you will be empowered to decide, and the LPA itself will be your point of reference for this. As well as specifying whether you are a property and financial affairs attorney, or a health and welfare attorney, the LPA may set out specific instructions or wishes. It’s so important to understand your role from the outset and to regularly check that you are acting within the scope of it and fulfilling it as best you can.
Don’t I have to be an expert?
That last point is important. Many attorneys are family and close friends; they may not have accountancy qualifications or a medical degree, and nor do they need to. Attorneys simply need to carry out their role diligently, thoroughly and to the best of their ability. You are not expected to have a deep understanding of legal, financial or health matters (help is on hand for those). But you are expected to take reasonable care. To be honest, responsible, methodical and conscientious. And to act in the donor’s best interests at all times.
Read more about Powers of Attorney, including:
- Lasting Powers of Attorney;
- Business LPAs;
- Enduring Powers of Attorney; and
- specific guidance relating to the COVID-19 pandemic.