How To Select A Power Of Attorney
The 21 September 2018 was World Alzheimer’s Day. Alzheimer’s Disease is the most common form of dementia and the numbers suffering from this devastating condition will continue to rise. Losing mental capacity, through disease, old age or an accident, can result in stress and anxiety for loved ones, left unsure how the person would wish to have their health, and financial affairs managed. One way to alleviate this stress is to create a Lasting Power of Attorney, which stipulates how you would like your affairs to be managed and appoints people to carry out these wishes on your behalf.
Choosing an Attorney
One of the most challenging parts of making a Power of Attorney is choosing your attorneys. This is an incredibly important decision and is not one which should be made in haste.
An attorney can be anyone the donor chooses to appoint, for example, a family member, friend, a professional person such as a solicitor or a trust corporation. In the case of a health and welfare LPA, your attorney must be 18 years or over with full mental capacity. For a property and financial LPA, your attorney must be over 18 years. A person who has been discharged from a bankruptcy order can be appointed as an Attorney, although making such an appointment should be made with extreme caution.
If you choose your spouse or civil partner to be your attorney, their authority to act will end if you divorce unless you include an instruction in your LPA which states they can continue to be an attorney.
It is also important to remember that a professional or a trust corporation will charge a fee for acting as an attorney. However, if you have complex financial affairs, you may feel safer knowing they are being managed by an expert.
Two heads are better than one?
There is no limit to the number of attorneys you can have. However, if you have multiple attorneys, as a donor, you will need to decide whether they will act jointly, jointly and severally, or jointly in some matters and jointly and severally in other matters. There are advantages and disadvantages to all scenarios. For example, if they are always to act jointly, meaning all signatories have to sign any documentation before a matter can progress, problems can occur if one attorney is on holiday at the time the documents need attending. Disputes can arise in cases where attorneys must sometimes act jointly and sometimes severally; therefore, you should ensure your LPA is drafted in a very clear manner, so each attorney knows the extent and limitations of their individual powers.
The duties and powers of an attorney
The duties and powers of an attorney are set out in the Mental Capacity Act 2005 (the Act). The Act states that:
- An attorney must assume a donor can make their own decisions unless it is established they are unable to.
- Take all practical steps to help the donor make their own decisions, such as collating all the necessary information and using simple language to explain the matter. Only after all methods are exhausted should the attorney conclude the donor cannot make their own decision.
- Just because the donor makes a bad decision does not mean they are incapable of deciding.
- Before making a decision, examine if there is a way to act which is less restrictive on the donor’s rights and freedoms but still achieves the desired purpose.
The overriding duty of an attorney is always to act in the donor’s best interests. Section 4 of the Act provides a non-exhaustive checklist to follow when considering what is in the donor’s best interests. The checklist includes directions such as:
- Not being prejudiced by the donor’s age, behaviour, appearance, or condition.
- Consider all the relevant circumstances, not just those they deem important.
- Think about whether the donor may have capacity in the future to decide for themselves, and if so, leave the decision-making until that time if possible.
- As far as is reasonably practicable, permit and encourage the donor to participate, or improve their ability to participate, in any decision or act affecting them as fully as possible.
- Consider the views of those close to the donor, such as friends, family, and caregivers.
- As much as possible, consider the donor’s past and present wishes and feelings (including any relevant written statement by them), beliefs and values (religious, cultural, moral or political) and any other factors that might influence the donor’s decision if they could make it for themselves.
As you can see from above, being an attorney is a considerable responsibility and one that demands intelligence, caring, sensitivity, and unselfishness. Therefore, if you are making an LPA, take your time in choosing your attorney/s and don’t hesitate to take advice from your solicitor if required.
Bennett Griffin are award-winning solicitors based in West Sussex with offices in central Worthing and Ferring. Our experienced and specialist solicitors offer a comprehensive service and will work with you in an honest, considered, and practical manner. Our wills, trusts, and probate department can advise and assist you in relation to making an LPA. Please contact us on 01903 229 999 or by email at firstname.lastname@example.org for more information.
Please note this article does not constitute legal advice.