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 as much as possible.  If that is not possible, then the attorney must make the right decisions on the donor’s behalf or in their best interests.

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 until all practical steps have been taken without success.

Unwise decisions – the donor cannot be treated as being unable to make a decision just because the attorney thinks the donor is making an unwise or strange decision, or they disagree with it.

Best interests – any decisions made on the donor’s behalf must be made in their best interests – not in the best interests of the attorney or anyone else.

Least restrictive option – before an act is carried out or a decision made, it must be considered whether there is a less restrictive option that affects the donor’s rights or freedom of action.

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, 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, and can investigate if they are not carrying out their duties properly. The OPG can also refer or report an allegation to another agency such as the police or social services.

The OPG 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.


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