Asked to be Power of Attorney? 7 crucial things you need to know!

Asked to be Power of Attorney?
7 crucial things you need to know!

A Power of Attorney is a legal document where someone gives the right to other(s) to make decisions on their behalf should they lose “mental capacity” and are unable to make decisions for themselves.

A number of things can affect someone’s ‘mental capacity’. These could be:

• A learning difficulty
• Mental health issues
• Illness
• Dementia
• Brain injury

The person handing over the rights is called a “donor” and the Power of Attorney must be set up whilst the donor still has mental capacity – therefore it’s best to be prepared earlier on. The person who is given power of attorney is known as the “attorney” and must be over 18 years old.

It’s VERY important to note that you CANNOT set up a Power of Attorney when you have lost mental capacity. It must be set up whilst you have capacity.

There are two types of Power of Attorney in the UK: Lasting Power of Attorney (LPA) and an Ordinary Power of Attorney (OPA).

Before agreeing to become an attorney for a loved one it’s important to realise exactly what the job entails and whether you can commit.

Asked to become Power of Attorney?
Here are 7 extremely important points you must consider.

1. It can involve making difficult and time-consuming decisions dealing with sensitive issues but will ultimately be a rewarding task which will give peace of mind to the donor and the attorney that all affairs of the donor are handled in their best interest.
2. If you do not think you are fit to be an attorney it is preferable to let the donor know before the LPA is set up, rather than to surrender the responsibility at a later date, as the donor may not have the mental capacity to adjust the legal documentation and make other arrangements at that time.
3. As an attorney, legally you are responsible for making decisions in relation to the donor’s financial affairs and/or health and welfare (depending on which LPA is set up), and you must act in the donor’s best interest.
4. When possible, you must only help the donor make their own decisions rather than taking control fully. These decisions must be in line with the Mental Capacity Act (2005) and the corresponding code of practice, and you must internalise these fully as you will be asked to sign a statement confirming you agree to and understand your legal responsibilities as an attorney.
5. If you do not perform your duties properly then you could owe the donor compensation for any losses.
6. Only when the LPA is registered with the “Office of Public Guardian” can you act under it, this differs from an OPA. There may be further restrictions and guidance on LPA’s that you have to abide by, depending on the individual circumstance, for example, you may not be able to make gifts.
7. If there is more than one attorney then you should incorporate them into all decisions unless you have special independent authority.

These are amongst a number of practical issues to take into account to carry out your responsibilities as an attorney to the best of your ability.

For more information get in touch with us at Just Wills and Legal Services on 01342 477102 to book a free consultation.

This article is for general information only and does not constitute legal advice. You should not rely on this information to make (or refrain from making) any decisions. Always obtain independent, professional advice for your own particular situation.