The Post – Legal corner June 2019
This article focusses on the duties of an Attorney appointed by a Lasting Power of Attorney (LPA)
What is an Attorney?
A lasting power of attorney (LPA) is a legal document which a person can use to appoint a person or people to make decisions for them when they no longer have capacity to make decisions. The person who is making the LPA is called a “Donor” and the person who is appointed is called an “Attorney”.
- A Property and Finance LPA appoints an Attorney to make financial decisions for the Donor, including opening or closing bank accounts, paying bills, making investments and even buying or selling property.
- The Health and Welfare LPA appoints an Attorney to make health decisions for the Donor such as whether they are cared for at home or hospital, what medication they receive and whether they receive life sustaining care.
The Mental Capacity Act
If you have been appointed as an Attorney your responsibilities are governed by the Mental Capacity Act 2005 (MCA) and the MCA Code of Practice. The most important thing to remember is that any decision that you make as an Attorney must be in the Donor’s best interests.
Mental Capacity Act – main principles
- Assume the Donor can make their own decisions.
You must always assume the Donor can make their own decisions unless it has been established that they cannot do so following a capacity assessment by a medical professional. Capacity is judged in relation to the decision that needs to be made – a more complicated decision has a higher threshold. To have capacity the Donor needs to understand the decision that they need to make, be able to weigh up necessary information and understand the consequences of their decision. Capacity can fluctuate and lack of capacity may be temporary. If you have concerns about a person’s capacity, speak to a professional.
- Help the Donor to make as many decisions as they can.
Think about different ways to present information to help the person to make a decision and talk to the Donor about what you are doing (even if they don’t have capacity).
- Making an unwise decision does not mean a Donor has lost capacity.
You cannot assume that a person has lost capacity if they make a decision that you do not agree with.
- Always act in the Donor’s best interests.
The most important consideration when making decisions for a person is what is in their best interests.
Other important considerations:
- You can only use an LPA when it has been registered with the Office of Public Guardian (OPG).
- If you have been appointed as an Attorney under a Property and Finance LPA you can start to help the Donor to make decisions as soon as the donor gives you permission to do so, or if the Donor no longer has capacity.
- If you are appointed as an Attorney under a Health and Welfare LPA you can only start to act when the Donor no longer has capacity to make decisions for themselves.
- If two or more people have been appointed as joint Attorneysthey must make all decisions together. If you have been appointed jointly and severally then it is up to the Attorneys to decide which decisions need to be agreed.