A Power of Attorney (POA) is a legal document that allows an appointed person (the attorney) to make decisions for another person (the donor), where the donor needs help managing their affairs or they are no longer able to make their own decisions.
If you have been asked to act as an attorney by a prospective donor, or you have already been appointed as an attorney and the time has come for you to make decisions on their behalf, the following article looks at frequently asked questions about Powers of Attorney.
Power of Attorney meaning: When will I be required to act as an attorney?
The point at which you will be required to act as an attorney will depend upon the nature of the Power of Attorney you have agreed to, and exactly when the donor has requested that this takes effect.
With an ordinary POA, typically used for everyday tasks such as paying bills, the authority to act arises as soon as the deed is signed.
With a Lasting Power of Attorney (LPA) used to appoint someone to make financial decisions on behalf of the donor, the authority to act can either arise as soon as the LPA is registered or, alternatively, will come into force only when the donor loses the mental capacity to make their own decisions.
In the case of a health and care LPA, under which an attorney can make important decisions about someone’s medical care, including consenting or refusing life-sustaining treatment, the power to act only ever comes into effect if the donor loses mental capacity.
Power of Attorney meaning: What will I be required to do as an attorney?
The decisions that you will be required to make as an attorney will again depend upon the nature of the Power of Attorney and what this has been set up to cover.
An ordinary POA will, in broad terms, cover decisions relating to a donor’s property and finances, although the donor can limit the scope within which an attorney has authority to act.
Similarly, a Lasting Power of Attorney for property and financial affairs can be limited in scope. By way of example, you may be authorised to make withdrawals from a donor’s bank and building society accounts, but unable to sell a donor’s property, or unable to sell without the consent of all other appointed attorneys.
Power of Attorney meaning: Can I act alone as an attorney?
The donor can choose to appoint one attorney, or numerous attorneys, to make different kinds of decisions. Where more than one attorney has been appointed to act, the donor can decide whether you are to act jointly on every decision, or whether certain decisions can be made independently.
It is not uncommon for attorneys to be required to act jointly on complex and important decisions, whereas simple or less significant decisions need not be made unanimously.
Power of Attorney meaning: What is the meaning of ‘mental capacity’?
Where a Lasting Power of Attorney only comes into force where the donor lacks mental capacity, you may be required, as an attorney, to prove that the individual in question has indeed lost the ability to make their own decisions.
Mental capacity means the ability to understand and make a specific decision at the time that decision needs to be made. In some cases, a donor may be perfectly capable of making small decisions about everyday issues, but wholly unable to make more serious or significant decisions on important issues such as their finances or healthcare.
This definition of mental capacity also reflects the fact that a person who is unable to make a decision for themselves at a certain time, may be subsequently able to make that decision at a later date.
This may be because they have an illness or condition that means their capacity changes. Alternatively, it may be because at the time the decision needs to be made, they are unconscious due to an accident or their ability to make a decision may be affected by the influence of alcohol or drugs.
Power of Attorney meaning: Who is responsible for assessing mental capacity?
Typically, to be able to make complex or major decisions on behalf of a donor, you will need to get professional medical opinion to assess their lack of mental capacity to make their own decisions.
In some cases this will simply involve contacting the person’s general practitioner or family doctor. If, however, the person has a particular condition or disorder, it may be appropriate to contact a specialist, for example, a consultant psychiatrist or psychologist, or other professional with experience of caring for patients with that condition.
In some cases, a multi-disciplinary approach is best, combining the skills and expertise of different professionals, possibly even including a speech and language therapist to help if there are communication difficulties.
Power of Attorney meaning: Where can I find any written guidance?
When acting as an attorney under an LPA, regard must be had to the following five statutory principles as set out under the Mental Capacity Act 2005:
- A person must be assumed to have capacity unless it is established that they lack capacity.
- A person is not to be treated as unable to make a decision unless all practicable steps to help him or her to do so have been taken without success.
- A person is not to be treated as unable to make a decision merely because s/he makes an unwise decision.
- An act done, or decision made, under the 2005 Act for or on behalf of a person who lacks capacity must be done, or made, in his or her best interests.
- Before the act is done, or the decision is made, regard must be had to whether the purpose for which it is needed can be as effectively achieved in a way that is less restrictive of the person’s rights and freedom of action.
The statutory principles aim to protect people who lack capacity and help them take part, as much as possible, in decisions that affect them. They aim to assist and support people who may lack capacity to make particular decisions, not to restrict or control their lives.
Further detailed guidance can be found under the 2005 Act Code of Practice as to what you must do when you act or make decisions on behalf of people who can’t act or make those decisions for themselves.
The Code has statutory force, which means that as an attorney you have a legal duty to have regard to it when making decisions on behalf of a donor who lacks capacity to make decisions for themselves.
As such, if you fail follow the relevant guidance contained in this Code, you will be expected to give good reasons as to why you have departed from it.
Power of Attorney meaning: What are my responsibilities as an attorney?
When acting as an attorney you are under a duty of care to act in the ‘best interests’ of the donor.
Working out what is in someone else’s best interests may be difficult, not least where there is disagreement about what someone’s best interests really are.
However, as an attorney, as long as you follow the guideline steps to establish whether a person has capacity, and done everything you reasonably can to work out what someone’s best interests are, for example, by trying to establish the individual’s preferences or by consulting others involved, you should be protected from any liability.
There are only very limited circumstances when the best interests principle will not apply, including where someone has previously made an advance decision to refuse medical treatment while they had the capacity to do so. Their advance decision should be respected when they lack capacity, even if others think that the decision to refuse treatment is not in their best interests.
Power of Attorney meaning: Should I seek legal advice as an attorney?
If you have been asked to act as an attorney you may want to ensure that the donor seeks professional legal help so that the right procedures for creating and registering the Power of Attorney are followed, otherwise the POA may not be valid.
It may also be helpful for you, as an attorney, to seek professional advice, so that you fully understand your duties and responsibilities in undertaking this role. This can be especially important if the donor’s affairs are complicated and you are being asked to make decisions on their behalf.
When agreeing to act as an attorney you will be requited to sign a statement saying that you understand your duties and, in particular, that you will act in the donor’s best interests. This means not only trying your best, but having the skills and ability to carry out the necessary tasks on behalf of the donor.
Author
Gill Laing is a qualified Legal Researcher & Analyst with niche specialisms in Law, Tax, Human Resources, Immigration & Employment Law.
Gill is a Multiple Business Owner and the Managing Director of Prof Services - a Marketing Agency for the Professional Services Sector.
