Lasting Powers of Attorney – how do I choose my attorney and what will their role involve?
The role of an attorney is extremely important and you should always carefully consider who you choose to be your attorney(s). You need to be sure that the person(s) you choose is suitable, in good health and free from obligation or pressures which might affect their ability to act effectively.
If you appoint more than one attorney you will need to consider how they will get along with each other – there is no point in appointing people who will be at loggerheads.
You also need to be sure that your proposed attorney has the required skills to manage your financial affairs or make personal welfare decisions.
Finally, above all else, you really need to be able to trust your attorney(s) because you will be relying on them if they act on your behalf.
Duties of an attorney
An attorney is under a legal duty to act in the best interests of the person making the Lasting Powers of Attorney (known as the donor). Whilst an attorney has wide powers to act on behalf of the donor in some respects there are also limits to their powers e.g. where gifts are concerned. On occasions the permission of the Court of Protection will be required for certain transactions and the attorney should be aware of when these situations can arise.
The attorney must abide by the Principles set out in the Mental Capacity Act 2005 which includes ensuring that wherever possible the donor is involved in making decisions rather than the attorney simply ‘taking over’ automatically.
Attorneys are also under a duty to keep accounts and they must keep their own funds separate at all times from the donor’s otherwise they are in breach of their duties.
What can I do to ensure that my Lasting Power of Attorney is as effective as possible?
The information provided here is just a small snapshot of the issues that an attorney needs to consider. With such an important role comes serious responsibilities and it is absolutely necessary to ensure that your attorneys understand what they have signed up to and for you to know that you have made the right choice regarding your attorney(s).
If you are thinking about making Lasting Powers of Attorney our experienced team here at RWK Goodman will be able to sit down with you and prepare a bespoke document which can incorporate safeguards if necessary. If you wish we will also make contact with your attorneys to ensure they are fully appraised of the role they are about to take on so that there are no problems later on.