Why do I need a Professional Attorney?

What is a power of attorney?

There are different types of power of attorney for different circumstances. Ordinary powers of attorney give someone the authority to make decisions or take actions about your finances while you still have mental capacity. Enduring powers of attorney were repealed on 1 October 2007, so it is no longer possible to make a new one but any created before 2007 continue to be valid.

The type we most commonly use are lasting powers of attorney (LPA), which are a way of giving someone you trust the legal authority to make decisions on your behalf if you lack mental capacity at some point in the future or no longer wish to make decisions for yourself. There are two different types: one grants authority in relation to a person’s property and financial affairs and the other grants authority in relation to a person’s health and welfare.

The person who is appointed to assist with decision making in the future is known as an Attorney.

Choosing an attorney

There are no special qualifications to be an attorney; anyone who’s over 18 can be one, with a few exceptions. Your attorney can be given complete authority over your financial and personal affairs so you should choose someone you trust to make decisions in your best interests. It could be:

• your partner or spouse
• a family member
• a friend
• a professional, such as a solicitor. You may need to pay a fee to a professional attorney.

You can choose more than one attorney. You will have to specify whether they can make decisions on their own, if they must all agree before a decision is made, or if they can make some decisions together and others separately.

The difference between an Attorney and a Deputy?

You can only appoint an Attorney under an LPA if you have the mental capacity to understand what you are doing at that time. You need to be able to understand relevant information, retain that information in your mind, weigh it up and then communicate your decision to appoint an Attorney.  

In comparison, a Deputy is appointed under a Deputyship Order by the Court of Protection to manage the property and affairs and/or personal welfare of someone who already lacks the capacity to make decisions for themselves. This will happen where a person loses capacity and has not already put a valid LPA in place. It can be an expensive and time-consuming process. The Court of Protection will complete checks on the intended Deputy before they can be appointed. The Deputy will then be supervised and kept under review by the Court of Protection. Deputies are required to complete annual reports to the Office of the Public Guardian and must account for all expenditure made on behalf of the person who has lost capacity.

Duties

An Attorney has the following principal duties:

1. To act within the scope of the LPA document (that appoints them). You must read and understand the document appointing you.
2. A duty of care
3. A duty not to delegate
4. A duty not to take advantage of the position
5. A duty of good faith
6. To keep accounts
7. Not to make gifts of the Donor’s property/money except as permitted by Section 12 of The Mental Capacity Act
8. To keep the Donor’s money and property entirely separate
9. A duty of confidentiality
10. To comply with any directions of the Court
11. Not to disclaim (stand down) without notifying the Donor and the Court
12. To act in the best interests of an incapacitated Donor at all times
13. There are statutory and other legal duties in relation to making and managing investments for the Donor which you must follow
14. An Attorney should be familiar with the Mental Capacity Act 2005 Code of Practice

An Attorney who fails to comply with these duties cannot rely on a defence of ignorance.

Property and finances LPAs deal with decisions such as:

• looking after your bills
• making investments for you
• buying, selling or maintaining your property
• giving gifts on your behalf

Health and welfare LPAs cover things such as:

• whether you live at home or in a care home
• the leisure activities, diet and kinds of clothes you prefer
• what happens to your pets if you lose mental capacity
• whether to accept medical treatment to keep you alive beyond a certain point

Why do I need a Professional Attorney?

Acting as an attorney is a position of great responsibility with legal obligations that should be fully understood and prepared for before an individual agrees to accept the position. It can be difficult to know what you are required to do and you can be held accountable for making any wrong decisions which could potentially lead to investigation by the police, Office of the Public Guardian or Court of Protection.

Professional Attorneys have the required skill set to deal with the role properly. Plus, Attorneys who are being paid for their services or hold relevant professional qualifications must demonstrate a higher degree of care or skill than those acting in an unpaid or informal capacity, which can give you a great sense of security. Plus, often people do not want to burden their family or friends with decision making or they simply don’t know who to choose or trust.

What to do next?

Here at Myerson Solicitors, our Wills, Trusts and Probate team are highly experienced in drafting powers of attorney and can also act as Professional Attorney on your behalf. If you would like assistance, please do not hesitate to get in touch at lawyers@myerson.co.uk or call us on 0161 941 4000.