A lasting Power of Attorney provides the legal framework for others to act in your best interests for you should you lose mental capacity or not wish to make your own decisions.
This could be because of dementia, a stroke or a serious accident, for instance. These events could come at any time in your life. Therefore, setting up an agreement is a sensible precaution when you are in your prime, not just in your later years.
If you ask someone to be your attorney, or indeed are asked yourself, you may be wondering what the responsibilities are. Here is a list of seven of the main ones.
One – Qualifying criteria
An attorney must be 18 years old or older and be capable of making decisions. They are unlikely to be allowed to be an attorney if they are bankrupt. If they were already acting as an attorney and became bankrupt, the power may be taken away from them.
More than one person can be appointed to act as your attorney, and you can pay a professional, such as a solicitor or bank, to be one. Attorneys can act individually or jointly, or only jointly depending on how the LPA is worded.
Two – Understand their preferences
Before you start acting as an attorney, have a discussion with the donor to understand what their wishes and preferences are, so you are well-placed to act as they would like.
It may be too late to have this conversation after the Power of Attorney agreement has come into force, so make sure you know exactly what the donor wants from you.
If more than one attorney is chosen, work out how you would divide your responsibilities.
Three – General principles
A Power of Attorney agreement may contain specific instructions which you have a responsibility to follow.
You should try to help the donor make their own decisions as much as possible, and when you make decisions ensure that they are in the donor’s best interests. You must respect their human and civil rights at all times.
Four – Limit your power
You can only act as attorney for matters on which you have been asked to represent.
There are two kinds of Power of Attorney – one for health and welfare, and one for property and financial affairs – so these two areas are a good initial distinction to make. If only one type of Power of Attorney has been set up, you can’t get involved in the other.
But the donor can put further limits on your power within each arrangement. For example, they may want you to have authority to manage their bank accounts, but no power to sell their house. If they do this, it should be carefully worded so everyone is clear on where they stand.
Five – Do not delegate
The named attorney or attorneys have sole responsibility and have no authority to delegate power to anyone else to perform their duties.
Six – Keep records
If you have power over finances, you must manage them separately and keep records of the donor’s affairs (unless, say, you already had a joint bank account, or owned a home together).
When signatures are required, you should use your own signature and state underneath that you are acting as an attorney for the donor.
Seven – Other compliance
You will need to lodge a record of your Power of Attorney with institutions like banks in order to have your authority recognised.
The regulator – The office of the Public Guardian (OPG) – has the power to check, visit and investigate you if they see reason to, and you should comply with this.
You must notify them of material changes such as a relevant death, change of name or address, or if you step down as an attorney.