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Melanie’s Myth-busters #9 – I have been appointed as an Attorney, so I can take over my loved one’s decisions when I like

2018-11-30T14:15:23+00:00November 30th, 2018|Melanie’s Myth Busters|

Despite it seeming to have some logic, this is nevertheless quite wrong.

When someone makes a Lasting Power of Attorney, they are known as the Donor. When any Donor appoints you as their Attorney, they are placing a great deal of trust in you and your ability to make the right decisions for them, if or when this becomes necessary. They are also trusting you not to simply take over, if they don’t want or need you to.

In addition to this, when someone agrees to be an Attorney, they will sign the Lasting Power of Attorney document itself to confirm that they will always act in the Donor’s best interests, even if the decision isn’t in their own interests, or isn’t what the Attorney would ideally like to happen.

If the Donor still has the mental capacity to make their own decisions, then an Attorney may only act on their behalf in relation to their property and finances, if they ask them to, and if the Lasting Power of Attorney is set up to allow this. Sometimes, a financial Lasting Power of Attorney is set up limited to only when the Donor no longer has mental capacity to make decisions for themselves.

Turning to health and welfare decisions, an Attorney appointed under a health and care Lasting Power of Attorney cannot make decisions about these types of things on Donor’s behalf unless the Donor no longer has capacity to make such decisions for themselves. There are also special rules about making decisions concerning life sustaining treatment, and the Donor will have provided guidance about this in the Lasting Power of Attorney document itself.

If an Attorney needs to act under their authority conferred in a Lasting Power of Attorney, then decisions made must be in line with the provisions of the Mental Capacity Act 2005 and its accompanying Code of Conduct.

In brief the Mental Capacity Act says:

  • Attorneys must assume that the Donor can make their own decisions, unless it is established that they cannot;
  • Attorneys must help the Donor to make as many of their own decisions as they can. They must take all practical steps to help the Donor make a decision. Attorneys can only treat the Donor as unable to make a decision, if they have not succeeded in helping the Donor make a decision through those steps;
  • Attorneys must not treat the Donor as being unable to make a decision simply because they make an unwise decision;
  • Attorneys must act and make decisions in the Donor’s best interests when you are unable to make a decision;
  • Before Attorneys make a decision or act for the Donor, they must consider whether they can make a decision or act in a way that is less restrictive of the Donor’s rights and freedom but still achieves the purpose.

You can always ask for help if you are struggling with your role as an Attorney, by speaking with the Office of the Public Guardian on 0300 456 0300 or a solicitor.

For more information about acting as an Attorney, making a Lasting Power of Attorney, or any other matter, contact one of our reassuring experts on 01904 866139 or 01423 449778 or via our contact form.

About the Author:

Melanie Pickering
Melanie joined Roche Legal in 2015 and has since qualified with us as a solicitor specialising in Wills, Probate and contested private client matters.
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