How should I act as an attorney?

I often write and ask you to make lasting powers of attorney in relation to your property and financial affairs and your health and welfare. These are documents in which you appoint the person or persons you choose (the attorney or attorneys) to make decisions about your property and your finances if you become unable or unwilling to do so or that you appoint to make decisions about your medical treatment and general social care if you become mentally unable to make those decisions for yourself. As I write about it so often I hope you have done it. If you have not taken this step yet then please ask us for a booklet or make an appointment to have a free interview with us to discuss it.

This month I want to look at lasting powers of attorney in relation to property and financial affairs from the attorneys’ perspective. The person who made the lasting power of attorney (the donor) trusts you to make decisions for them if they lose mental capacity. If the donor wants you to then you can help them straightaway. Talk to the donor about how they look after their finances. For example do they give birthday gifts to their children or other friends and family and if so how much. How do they like spending their money? Do they donate to particular charities? If they were to move into a care home would they like to sell their home or rent it out? If you act under the lasting power of attorney then you must of course always act honestly and you must always act in the donor’s best interests. You must assume that the donor can make decisions for themselves unless it is shown that they cannot. You should try and help the donor to understand the decisions they need to make.

Any decision that is made must be the best one for the donor.

If you are acting under the lasting power of attorney then you must keep accounts by writing down income and bigger outgoings and gifts. You must keep any bills. It is important to keep the donor’s and your money and property separate unless you already have a joint account with the donor or own a home together.

If you are acting as attorney then banks, building societies and utility companies need proof that you are the attorney. You will have to show them an original or properly certified copy of the lasting power of attorney and proof of who you are and where you live.

Gifts can only be made if they are in the donor’s best interests. Spending must not harm the donor’s care or quality of life. You cannot make profits or benefit personally from acting for the donor.

If there are other attorneys the lasting power of attorney will say how you act together. This may be jointly and severally – that is you can decide with other attorneys or by yourself. It may be jointly – all attorneys must agree every decision. It may be a mixture of the two that is some decisions must be made jointly others jointly and severally. If you have to make a decision jointly and you cannot all agree then that decision cannot be made.

Before you act on each occasion think is this what the donor would want? Check whether the donor could help make the decision. Remember every decision must be in the donor’s best interests