Becoming An Attorney - Real Talk
Run an internet search on Lasting Power of Attorney (LPA) and the results will throw up hundreds of articles. Read them and it’s clear most are written from a scholarly perspective, academically regurgitating the law and policy. This, probably because they are written by those who have no skin in the game; no experience of the real difficulty and grind of being an attorney. I do. My thoughts and guidance are below.
Agreeing to Be an Attorney - What’s Involved?
Being asked to take on the responsibility of being someone’s attorney can be both a stamp of one’s value and quite possibly, a burden. It is very important not to solely focus on the former and ignore the latter and the impact it could have on your time and general life. Having LPA duties is not something that should be entered or carried out half heartedly. You should think carefully about whether you are willing, able and committed to making the appropriate decisions as and when they arise.
The person making the LPA is called a donor; they appoint one or more individuals called attorneys to make decisions on their behalf. LPAs are made in anticipation of physical or mental incapacity and should not be made until mental capacity is confirmed. Another condition that must be satisfied is the absence of undue influence. This can be defined as unnecessary, inappropriate or insidious pressure. As the number of LPA applications grow, the incidence of this becomes more common. I have had seen it happen myself.
In England and Wales, there are two types of LPA; health and welfare and property and finance. The decisions the attorney will be able to take, and under what circumstances and when those decisions can be effected is explained clearly by each type of LPA. Being appointed under a property and financial affairs LPA does not give you the authority to make health and welfare decisions - and vice versa - though you can be appointed as an attorney under both kinds of LPA. N.B. There is a different process in Scotland and Northern Ireland.
There is no doubt that for most people, being asked to be someone’s attorney is an honour; it is a signal of ultimate trust and a stamp of approval about your integrity. But be mindful that the role can come with a cost.
Being an attorney will likely involve making very difficult decisions. Examples include considering moving the donor into residential care, which facility and what budget is manageable. The role can also come with an administrative burden that many are not ready for, for example, completing the donor’s tax return and paying the demand. Furthermore, decisions and understanding are one thing, the work entailed in execution is another. So, be mindful that although you can claim for reasonable expenses, unless one is a professional attorney, the role is an unpaid.
I have had the vicarious experience of watching my wife acting as attorney to her mother and deputy to her father (more on the latter in another post). This is a role she has performed over the last five years out of love for and duty to her parents. That and having looked after my own parents until their last breath informs me thus; do not take on the responsibility of the role of an attorney if you do not think you have the time, patience, or backbone to acquire the above. In hindsight, for many attorneys, the role represents a long journey that can prove to be extremely frustrating and unforgiving.
If at all possible, speak openly and honestly to the donor, let them know how you feel, that you might need help and support etc etc. This is preferable to accepting the role only to later feel consumed by it and wanting to give it up. All this at a time when the donor may no longer be in a position to choose alternatives.
An Attorney’s Legal Responsibilities
After speaking with the donor and satisfying both them and yourself that the role is one you are willing and prepared to perform, you’ll be required to sign a statement confirming you understand your legal responsibilities. These are to:
follow any instructions the donor included in the LPA;
consider any preferences the donor included in the LPA;
help the donor make their own decisions as much as they can;
make any decisions in the donor’s best interests;
respect the donor’s human and civil rights;
get help making difficult decisions (your decisions can be checked);
make decisions yourself - you cannot and should not ask someone to make them for you.
As an attorney, when making decisions, start from the assumption that the donor is capable, help them to make the decisions. Resist the temptation to simply take over (unless that is what the donor wants and is in their best interest). At the same time, take things on a decision-by-decision basis. The donor might be capable of and want to make small decisions (such as what to wear, where to go for a walk etc), but not complex ones such as managing financial issues.
Checks and Balance
To note the serious nature of the role, not carrying out the responsibilities correctly could result in being ordered to compensate the donor for any losses they suffer or facing criminal charges if you ill-treat or wilfully neglect the donor. Don’t get carried away thinking being an attorney will not give you all consuming and unbridled decision making power. More people than ever before are being taken to court over misuse of power. The Office of Public Guardian made 721 applications to the Court of Protection to remove or censure LPAs in 2018/19, that was 55% more than the previous year and a record high.
Checks and balances will also come in the form of onlookers, such as families and friends. That said, this can also cause additional hassle in it comes in the form of interference.
Your authority as a donor is limited by the points below:
you cannot act under an LPA until it has been registered with the Office of the Public Guardian;
an LPA may only authorise you to act if the donor lacks the mental capacity to make the decision. This restriction automatically applies to any health and welfare LPA;
if you have been appointed under a health and welfare LPA, you can only make decisions regarding 'life-sustaining' treatments if the LPA specifically says so;
an LPA may also include further restrictions on the decisions you can take, for example that you cannot make gifts;
the donor may discuss their wishes with you, and/or include guidance in the LPA. You should take this guidance into account when making decisions;
when appropriate, you may also need to consult with the donor’s family or friends, no matter how difficult and fractious the relationship between you might be;
an LPA may appoint more than one attorney. If so, they might be required to make some or all decisions together (ie unanimously) rather than independently;
if the donor has made more than one LPA (or other kinds of power of attorney), you may need to cooperate with other attorneys where your authorities overlap (care home being an ideal example where decisions include which facility and the payment for this);
you should take advice if the extent of your authority to make decisions independently is unclear.
If you are unsure whether the donor has capacity, you should get an expert opinion, ideally from a a doctor who has known the donor. Do bear in mind that simply disagreeing with you, or making foolish or eccentric decisions, does not mean that the donor lacks capacity. The Mental Capacity Act of 2005 dictates that People have the right to make decisions that others might regard as unwise or eccentric. You cannot treat someone as lacking capacity for this reason. Everyone has their own values, beliefs and preferences which may not be the same as those of other people. This can prove extremely difficult to accept and requires much patience, especially if you feel the donor is pulling in the opposite direction of what you feel in is their best interest!
Lasting power of attorney responsibilities - practical issues
Once you are acting as an attorney, there are several practical issues you need to take into account:
as a financial affairs attorney, you must keep the donor's finances and possessions separate from your own;
you must also keep accurate accounts detailing the transactions you’ve carried out on behalf of the donor;
if you need to make a decision but do not know what the best decision would be, you can take advice. For example, you could consult a financial adviser about investments. However, you cannot delegate decision-making to someone else unless the LPA authorises you to do so;
If you feel that a decision needs to be taken that is not within your powers, you can apply to the Court of Protection. For example, if you are an attorney under a property and financial affairs LPA and want to make large gifts as part of an inheritance tax planning strategy, you will need court approval;
If the donor dies, you should send the LPA and a copy of the death certificate to the Office of the Public Guardian. You will then have no further power to act for the donor under the LPA;
If you no longer wish to be an attorney, you can 'disclaim' the role. If the LPA has not yet been registered, you should give formal notice to the donor. If the LPA has been registered, you must contact the Office of the Public Guardian.
There has been many moments over the years when my wife has been on the verge of absolving herself of her duties as it has caused her much anxiety; the administrative burden has been more than anticipated and some of the decisions that have had to be made have caused fissures in her family. However, what is for sure is that for the donor, it is better to have LPAs in place and for people like my wife, better to have the responsibility, than being on the sideline, frustrated that the role is not being adequately performed.
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