More and more people, young and old, are safeguarding their future by taking out a lasting power of attorney in which they name someone they trust to handle their affairs if they become mentally incapacitated.

But what does being named as an attorney in a lasting power of attorney involve? Donna Rowland, an Associate in the private client department at WBW Solicitors in Newton Abbot explains.

A lasting power of attorney is legal document that lets someone (the donor) select one or more people to serve as their attorneys to make decisions on their behalf about how their affairs should be managed should they lose mental capacity.

There are two kinds in which you could be named as an attorney:

  • A financial lasting power of attorney – this empowers you to deal with issues such as managing the donor’s bank accounts and investments, paying their bills, applying for benefits, and buying and selling their property. You must keep the donor’s finances and possessions separate from your own, and keep up-to-date records of what you have done.
  • A health and welfare lasting power of attorney – this enables you to make decisions for the donor about day-to-day matters such as eating, washing and medical care, as well as more significant issues such as where they should live and whether life-sustaining treatment should be continued.

Both types allow the donor to set out in writing how they would like you to manage their affairs while they are incapacitated, providing you with guidance and placing any restrictions on your powers that they feel are needed. Being appointed under a one lasting power of attorney does not give you the authority to make decisions under the other, although you can be an attorney of both.

An attorney is an unpaid role (although you may reclaim reasonable expenses) and comes with a number of responsibilities such as always acting in the donor’s best interests and only under the terms laid out in the lasting power of attorney. It can involve some difficult decisions and you can face criminal charges if you neglect or ill-treat the donor. It is not, therefore, something to be undertaken lightly.

You are obligated to help the donor make their own decisions where possible, and you will need to assess whether the donor has the capacity on a decision-by-decision basis. To help you decide if they have mental capacity, you should apply a two-stage test:

  • Is the donor’s mind or brain impaired or disturbed in some way?
  • Does this make the donor unable to take the decision at the time it needs to be taken?

If you are unsure whether the donor has capacity, you should get an expert opinion, such as from a doctor.

If you are named as an attorney, it is a good idea to get legal advice before you start your duties. Our private client specialists can advise you of all your rights and responsibilities, on how you should approach your decision-making, help you apply to the Court of Protection if a decision needs to be made which is not within your powers, and outline the best course of action if the donor dies or if you no longer wish to continue in your role.

For more information on lasting powers of attorney, or any other private client issue, contact Donna Rowland at WBW Solicitors in Newton Abbot on 01626 202416 or email donnarowland@wbw.co.uk

WBW has offices in TorquayPaigntonNewton AbbotExeterBovey Tracey,  Exmouth,  Honiton,  Sidmouth,  Launceston,  AxminsterChard and Seaton.

This article is for general information only and does not constitute legal or professional advice. Please note that the law may have changed since this article was published.