Being an attorney under a Power of Attorney involves a great deal of power and responsibility. So, it is extremely important that the attorney is trustworthy and understands what acting as an attorney entails.
The attorney is governed by the Office of the Public Guardian (OPG). They must also comply with the principles in the Mental Capacity Act 2005 but, what does this mean?
How should my Attorney act?
Attorneys have certain principles that they must follow to ensure that they help the donor make their own decisions. If that is not possible, then the attorney must make the right decisions on the donor’s behalf. They have to make what is called a ‘best interests’ decision.
There are five principles:
Assume that the donor has capacity: the attorney must first assume that the donor can make decisions for themselves before they make decisions for them.
Helping the donor to make a decision: the donor must be treated as being able to make their own decisions. This is until all practical steps have been taken without success.
Unwise decisions: just because the donor’s decision is strange or unwise, doesn’t mean the donor cannot make that decision. Nor does it mean that the donor is unable to make the decision. Or because it is a decision the attorney disagrees with.
Best interests: any decisions made on the donor’s behalf must be made in their best interests. The decision should not be made in the best interests of the attorney or anyone else.
Least restrictive option: before an act is carried out or a decision made, the least restrictive option must be considered.
How can my Attorney act in my best interests?
The attorney must do the following:
- do everything possible to help the donor make a decision themselves.
- take account of the donor’s feelings from the past and the present. This is especially if they have expressed their wishes in, perhaps, an advance statement.
- think about the donor’s values and beliefs, and what they would usually think.
- talk to other people, such as their family, carers or friends, who know about their feelings, beliefs and values.
- know about any exceptions the donor may have, such as if they have made an advance decision to refuse medical treatment.
- keep their information confidential and consider their privacy.
What if the Attorney is not acting in the donor’s best interests?
The OPG is responsible for monitoring attorneys and deputies. They can investigate if they think the attorney is not doing their duties properly. The OPG can also refer or report an allegation to another agency such as the police or social services.
They can only investigate, however, if the donor has lost mental capacity. If the donor still has capacity, the attorney may want to consult a solicitor for advice.
Resigning as an attorney
There may be circumstances where the attorney either decides they no longer want to act or can no longer act as an attorney. This is called ‘disclaiming their appointment’. Here are the basic steps to resign from being an attorney or disclaiming their appointment:
- Notify the relevant parties: the attorney must notify the donor (if they still have mental capacity). They must also notify any co-attorneys and any named replacement attorneys.
- Complete the disclaiming form: “LPA005 – Disclaimer by an attorney or replacement attorney.”
- Sending the LPA005 form: the form must be sent to the relevant parties and the resigning attorney should retain a copy.
- Notify the OPG: the OPG will update their records.
What Happens After an Attorney Disclaims?
When an attorney disclaims their role, the responsibility may pass to any co-attorneys or a replacement attorney named in the LPA. If no replacement attorney is available and the donor still has capacity, they may choose to amend the LPA to appoint a new attorney. If the donor lacks capacity and no replacement is available, the LPA may become ineffective. It may be that a court-appointed deputy has to be appointed.
