Denzil Lush, a retired senior judge in the UK Court of Protection until July 2016, has warned that people should be far more aware of the risks involved in Power of Attorney arrangements and that he would never sign one himself. He went on to say, on the BBC’s ‘Today’ programme, that it can have a “devastating” impact on relationships. In light of the recent publicity surrounding Lasting Powers of Attorney, it is critically important for Attorneys to appreciate and understand the extent of the decision-making powers they have.

A Lasting Power of Attorney (“LPA”) is a document which allows a person (“the Donor”) to appoint one or more people (“Attorneys”), to either make decisions on behalf of the Donor, or to assist the Donor in making decisions by themselves.

There are many considerations for Attorneys to bear in mind whilst acting under an LPA, some of which are summarised below:-

A. Mental Capacity

As an Attorney, you have important duties and responsibilities which are set out in the Mental Capacity Act 2005 (“the Act”) and explained in the Mental Capacity Act Code of Practice (“the Code”), with which you must be familiar. The Code can be accessed using the link below:-

https://www.gov.uk/government/publications/mental-capacity-act-code-of-practice

You should always check whether the Donor has the capacity to make a particular decision themselves. You can act if the Donor does have capacity if they have asked you to act and there are no restrictions in the LPA.

In deciding whether the Donor has capacity, you should use the test set out in the Act, which is broken down into two stages, as set out below:-

i.      Stage 1 – Does the Donor have an impairment of, or a disturbance in, the functioning of their mind or brain? Examples include conditions associated with some form of dementia, or the long-term effects of brain damage.

ii.     Stage 2 – If so, does the impairment or disturbance mean that the person is unable to make specific decisions? This stage can only be applied if you have taken all practical steps to support the Donor in making the decision and these have failed.

The Donor should be considered as lacking capacity if, on a balance of probabilities, they are unable to:-

i.    Understand information about the decision to be made;

ii.    Retain that information in their mind;

iii.     Weigh that information as part of the decision-making process; or

iv.    Communicate their decision by talking, by using sign language or by any other means.

B. Donor’s Wishes

It is important that you consider the Donor’s past and present wishes and feelings, beliefs and values, when making decisions on their behalf. You should consider any moral, political and religious views of the Donor. It would be beneficial, if possible, to discuss these with the Donor before they lose mental capacity. The LPA may contain instructions, which must be complied with, or it may contain preferences, which must be considered but not necessarily complied with if the decision is not ultimately in the Donor’s best interests. Where appropriate, you should consult with:-

i.     Anyone caring for the Donor;

ii.    Close relatives and anybody else who may have an interest in their welfare; and

iii.   Other Attorneys appointed by the Donor.

C. Restricted Decisions

You are not permitted to make decisions on certain matters such as:-

i.     Voting; or

ii.    Relationships (such as getting married or divorced, or consenting to sex).

For more information on decisions which you cannot make, you should consult the Code.

D. Multiple Attorneys

Where there are more than one Attorney, you should check the LPA as it will tell you whether you must make decisions:-

i.     ‘jointly’ - this means you and any other Attorneys must all agree; or

ii.    ‘jointly and severally’ - this means you can make decisions together or on your own.

The LPA might direct you to make some decisions ‘jointly’ and others ‘jointly and severally’.

Should you require further information or advice in relation to acting as an Attorney, please call us on 020 7821 8211 and ask to speak to a member of our Private Client Department who will be glad to assist.

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