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Tips and advice for those asked to act as an attorney

Published: 28 October 2022
Time to read: 5 mins

Rear view of multi-generation family relaxing in row on retaining wall against clear sky

Acting as an Attorney on behalf of someone else, whether it be for financial or welfare matters, is a big commitment. If someone asks you to be their Attorney, it is important to understand what this role involves and the responsibility that comes with it.

So, where should you start if you have been asked to be an Attorney by a friend or family member?

Before your appointment

Before accepting the role of Attorney,  we recommend that you read the Code of Practice for Continuing and Welfare Attorneys and the summary of Attorneys Duties published by the Office of the Public Guardian. Importantly these documents provide guidance on how you should make decisions, should you decide to accept the role as attorney. The law sets out five over-arching principles which should be applied by an attorney when making any decision on behalf of another person.

These principles are that any action or decision by an Attorney must:

  • benefit the person;
  • be the minimum necessary to achieve the desired purpose;
  • take account the past or present wishes and feelings of the person;
  • take account of the views of others with an interest in the person; and
  • encourage the person to use existing skills and develop new skills.

What happens next?

Once the Power of Attorney in your favour has been signed, it must be registered with the Office of the Public Guardian before you can act as an Attorney.

When the Power of Attorney is being registered you will be asked to sign a document confirming that you are willing to act and, if you have been given financial powers, that you are not currently bankrupt.

Acting as an Attorney

Once the Power of Attorney is signed and registered, your financial powers can be used but this doesn’t necessarily mean that you should act immediately! You should only act either when the granter of the Power of Attorney wants you to (in the case of financial matters) or, when you are required to act due to granter being unable to (for both financial and welfare matters).

Should you need to act, before making any decisions you must consider the five over-arching principles. All of the principles are of equal importance and must be applied to every decision.

We will use Margaret as an example.  If you are the attorney for Margaret and are called upon to take a decision we recommend you ask yourself:-

  1. Is there any way Margaret can do this herself?
  2. If not, then ask yourself “How can I help Margaret do this herself?
  3. If that is not possible, then think “What would Margaret’s wishes be, will this benefit her and what is the minimum I need to do to achieve Margaret’s wishes?
  4. When you have reached a conclusion, discuss your proposals with Margaret’s close family and carers. Think about what they have to say as they may give you a helpful insight into her wishes.

Only when you have gone through this process, should you make a decision. One of the duties as an Attorney is to keep records therefore, we also recommend keeping a note of all decisions and the process followed in coming to that decision.

Top tips to being a good attorney?

1. Speak to the person who has asked you to be an attorney – as soon as you are asked to be an attorney, ensure you talk to them about their wishes. Whilst they are able it is vital to discuss their thoughts regarding care and medical treatment and to obtain an idea of their property and financial affairs. It is very important to understand  who, and what, is important to that person as this will help you when making a decision. Often this can be a difficult conversation, but it is crucial in helping you decide what to do if you are called upon to act. Remember, a person’s views and wishes, and financial affairs, can change over the years and it is a good idea to “check in” every few years so that you can continue to provide support effectively.

2. Understand what you can (and cannot) do – read the Power of Attorney document. An attorney can only act where the Power of Attorney gives them the power to (e.g. you can only open a new bank account on behalf of the granter if the Power of Attorney includes a power to open a bank account).
Remember, the powers allowing you to make decisions about care and welfare, may only be used when the granter does not have capacity.

3. Be organised – it is a legal obligation for all Attorneys to keep records. We recommend you keep a folder or a notebook (or both) to record all financial transactions and decisions which you have made whether financial or welfare.

4. Know when to seek help – read the Code of Conduct or contact The Office of the Public Guardian who provide helpful guidance for Attorneys. Legal advice can also be taken if necessary, for example where you are unsure if they have the power to take a decision.

Becoming a Power of Attorney is an important responsibility therefore we advise you read all documents carefully and seek the advice of a solicitor if you have any questions.

 

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