I’ve been appointed as a Power of Attorney – What does that mean?

What’s involved in having Power of Attorney?

When you are named as a Power of Attorney, it means you are legally authorised to make decisions on behalf of someone else, referred to as the donor, if they are unable to do so.

The type of Power of Attorney you hold determines the scope of your authority.

A Lasting Power of Attorney (LPA) can cover health and welfare or property and financial affairs, or both.

In the case of an LPA for health and welfare, your responsibility may involve decisions about medical treatment, living arrangements, and personal care.

For property and financial affairs, it involves managing the donor’s finances, including paying bills, collecting benefits, and even selling property if necessary.

It is essential to remember that being an Attorney does not mean you can make decisions based on your own preferences.

Your role is to act in the donor’s best interests, considering their wishes, values, and any instructions they may have provided.

This responsibility can be quite significant, especially if the donor’s circumstances are complex or if there are disagreements among family members.

When do you need to step in?

Your responsibilities as an Attorney come into play when the donor loses the mental capacity to make their own decisions, although it is possible to act sooner if they give you permission.

Mental capacity is the key legal concept here – it refers to the donor’s ability to understand, process, and communicate decisions.

If they are unable to do so due to illness, injury, or another condition, you must step in.

With an LPA for property and financial affairs, you can assist the donor while they still have mental capacity if they request it.

However, for health and welfare decisions, you can only act once the donor has lost capacity.

It’s essential to be clear on when your responsibilities start and to ensure that the donor’s rights are respected for as long as they can make their own decisions.

How to stay compliant with the law

As an Attorney, you have a legal obligation to follow specific rules and regulations to protect the donor’s interests.

You must keep clear records of any decisions you make and any actions you take on the donor’s behalf.

This may include maintaining accurate financial records, receipts, and documentation of any major decisions related to their health and wellbeing.

The Office of the Public Guardian (OPG) oversees the use of Power of Attorney and will investigate if there are any concerns about how an attorney is handling their duties.

Therefore, it’s important to familiarise yourself with the Code of Practice that comes with the role, as well as any specific instructions that the donor included when they appointed you.

Additionally, you should be aware that you cannot mix the donor’s funds with your own, and any conflicts of interest must be avoided.

Acting outside the scope of your legal authority or mismanaging the donor’s affairs could lead to legal consequences, including being removed from your position as Attorney.

The best way to maintain legal compliance is with the help of a solicitor who can guide you through your responsibilities, rights and obligations.

Often, this is as much about reassuring you that you’re doing the right thing as it is keeping you on the right side of the law.

If you require help with this, or you’d like to speak to a solicitor about appointing someone as an attorney, please get in touch with our team.

Please call 01926 356000 or email enquiries@alsterskelley.com.