02 September, 2019

Lasting Power of Attorney - The Role of the Attorney

You will often hear me talking about the importance of making a Lasting Power of Attorney (LPA) – my family will vouch for that! And hopefully many of those of you that are reading this will now have made your own LPA and advised your family members to do so also.  

So, what now?!  If you have been made an Attorney, what are your responsibilities before and after the Donor loses mental capacity?

The Office of the Public Guardian provide the following supporting guidance on the role of the attorney:

·         LP14: How to be a property and finances attorney which can be found at https://www.gov.uk/government/publications/how-to-be-an-attorney/how-to-be-an-attorney-property-and-financial-decisions

·         LP15: How to be a health and welfare attorney which can be found at https://www.gov.uk/government/publications/how-to-be-an-attorney/lp15-how-to-be-a-health-and-welfare-attorney-web-version

An important distinction between the two types of LPA is that, once registered, a property and affairs LPA allows the Attorneys to use the LPA if the Donor has got mental capacity as well as when they lose mental capacity (unless a restriction has been put into the document specifying that the LPA can only be used when the Donor lacks mental capacity). In contrast, once registered, a health and welfare LPA can only be used when the Donor lacks mental capacity to make decisions (or the Attorney reasonably believes the Donor lacks capacity).

Firstly, check the LPA document.  The person making the LPA (the ‘Donor’) may have inserted restrictions, conditions and guidance into their LPA specifying the types of decisions that their Attorneys can and cannot make, as well as clarifying their duties.

The role of the Attorney differs depending on whether they are an Attorney for Property and Financial Affairs or Health and Welfare.

Property and Financial Affairs

A registered property and financial affairs LPA enables the Attorneys to make decisions about:
- Buying and selling property;
- Opening, closing and operating bank/building society accounts; and
- Claiming, receiving and using benefits, pensions and allowances.

Ask the Donor where they keep their financial information, so you know what accounts the Donor has.  Once registered, Attorneys for Property and Financial Affairs have a duty to keep accounts and financial records and produce them to the Office of the Public Guardian and/or to the Court of Protection on request.

If the donor still has capacity, talk to them about how they would like you to manage their affairs.  For example,

·         give birthday gifts to children or other friends and family (and to what value)

·         like spending on clothes, music or trips (and how much)

·         donate to particular charities (and how much)

·         want to sell or rent out their home if they move into a care home

·         prefer to keep a minimum bank balance

Write these things down – or ask the person to write down what’s important to them.

Health and Welfare

A registered health and welfare LPA enables the Attorneys to make decisions about:
- Giving or refusing consent to particular types of health care, including medical treatment decisions;
- Decisions about staying in your own home, perhaps with help and support from social services;
- Decisions about moving into residential housing and choosing the right care home; and
- Day to day issues, like diet, dress or daily routine.

If the Donor has capacity, it is useful to sit with them and discuss their values and views, their likes and dislikes.  The Donor may like to write a letter of wishes.  Discuss with them:

·         where they want to live

·         if they follow any particular diet, such as vegetarian or vegan

·         their views on health care – if you’re chosen in the LPA to make decisions about ‘life-sustaining treatment’, this should include what they’d accept doctors doing to keep them alive

·         any political or moral outlook that shapes the decisions they make

·         what will happen if they can’t care for their pets

·         how they like to dress and wear their hair

·         their hobbies and tastes in music, TV, radio or books

·         if they prefer being indoors or outdoors

·         small things that cheer them up, such as a favourite film, a crossword, a glass of wine or a walk

Having these conversations now will help the Attorney to make decisions on the Donor’s behalf if required.  It can be helpful to review these wishes regularly as circumstances change, especially in relation to health and welfare decisions.

Mental Capacity Act

When making decisions for the Donor, Attorneys have a duty to act based on the principles of the Mental Capacity Act 2005 and have regard to the Mental Capacity Act Code of Practice. The Attorney must follow these principles:

1.      Presume the Donor has capacity to make their own decision unless it is established that they cannot do so;

2.      The Attorney must help the Donor to make as many of their own decisions as they can.  You must not treat the Donor as unable to make the decision in question unless all practicable steps to help the Donor have been made without success;

3.      If the Donor has mental capacity, they have the right to make a decision for themselves even if unwise;

4.      The Attorney must make decisions and act in the Donor’s best interest when the Donor is unable to make the decision in question;

5.      Before an Attorney makes a decision, they must consider alternatives to ensure the least restrictive option is taken

When the Donor lacks mental capacity, the Attorneys must act in the Donor’s best interests in making decisions for them when they are unable to make the decision themselves. They must consider all the relevant circumstances. This includes consulting with the Donor and others who are interested in their welfare. When deciding what is in the donor’s best interests, bear in mind:-

• their past and recent wishes;
• any views the donor has expressed in the past;
• their beliefs and values;
• the views of family members, parents, carers, etc;
• the possibility that the donor could regain capacity;
• any other factors that may be specific to a donor’s circumstances; and
• any guidance in the LPA or other written statement.

Decisions that an Attorney cannot make
An Attorney should always be aware of the decisions that they have not got the power to make under an LPA.  For a property and affairs LPA, this includes:-

·         making a will on the donor’s behalf (although the Court of Protection may authorise an Attorney to execute a Will for the Donor);

·         voting on the donor’s behalf;

·         access the donor’s will unless the donor has included a condition that an Attorney can. However, an Attorney can apply to the Court if they believe the will is essential in helping them carry out their role, and the person who holds the will refuses to show it to the Attorney.

In addition, there are restrictions on making gifts and an LPA only grants power to make gifts in specific circumstances.

For a health and welfare LPA, decisions cannot be made about:-

·         consenting to marriage or a civil partnership;

·         consenting to a decree of divorce (or civil partnership dissolution) based on two years’ separation;

·         consenting to sex; 

·         medical treatment for a mental disorder if the treatment is regulated by Part 4 of the Mental Health Act 1983.