What are my responsibilities as an Attorney in a Lasting Power of Attorney (LPA)?

When entrusted with the role of an attorney under someone’s power of attorney, whether for financial matters or health and welfare, a significant responsibility is placed on you to consistently act in their best interests. This duty also applies if you were appointed by the Court of Protection as a deputy, in the absence of a power of attorney.

Fortunately, the Mental Capacity Act 2005 and the Code of Practice offers guidance, outlining several factors to consider when determining what is in the best interests of another person. Adhering to the provisions of the Act is crucial, and seeking assistance from a solicitor can provide clarity on your legal obligations.

Factors outlined in the Mental Capacity Act include:

• Assessing the likelihood of the person regaining decision-making capacity in the future.
• Considering the individual’s general beliefs, values, and past and present wishes.
• Exploring any written statements expressing the person’s preferences.
• Encouraging the person’s active participation in decision-making.
• Considering the views of those involved in the person’s care.

If the person is expected to regain capacity, temporary decisions should be made, considering the circumstances. For decisions with long-term implications or significant life changes, a delay might be appropriate if urgency is not a factor.

Practical Considerations:

Implementing these principles, especially in challenging decisions such as selecting between home care and nursing home placement, prescribing specific medications, or deciding on property matters, can pose practical challenges. Katrina Greenwell, Head of Private Client department at Moss Solicitors, notes that these decisions can be intricate in practice.

Involving Others in Decision-Making:

In cases where co-attorneys are involved, striving for unanimous “best interests” decisions is ideal. Even if acting alone, considering the input of the person’s family and friends is valuable. For medical decisions, consulting with healthcare professionals and organising “best interests” meetings can alleviate the pressure of making decisions on someone else’s behalf.

Resolving Disagreements:

Differing opinions among attorneys may arise, and the decision-making authority depends on the terms of the Power of Attorney. Jointly and severally appointed attorneys may act independently, but collaborative decision-making is advisable. If disputes persist, seeking third-party input or mediation is recommended before resorting to legal interventions, such as applications to the Court of Protection.

Need further help ?

If grappling with best interest decisions or seeking a clearer understanding of relevant laws, solicitors can provide valuable assistance. In cases where concerns arise about another attorney’s actions or decisions, litigation teams can offer support.

OUR CONTACT DETAILS

Telephone: 01509 217770

Email: enquiries@moss-solicitors.co.uk

Note: This article provides general information and is not a substitute for legal or professional advice. It is essential to be aware that legal regulations may have changed since the article’s publication.