Residential property
16 Sep 2020 News

Our tips if you have been asked to fulfil the role of attorney

If you are chosen as an attorney we recommend that you familiarise yourself with the role and its obligations, as well as the responsibility that is being placed upon you.  We recommend you read the Code of Practice for Continuing and Welfare Attorneys published by the Office of the Public Guardian.

Tips for acting as an attorney

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.  While they have capacity, it is vital to discuss their wishes regarding care and medical treatment and to obtain an idea of their property and financial affairs.  It is also a good idea find out who is important to that person as this will give you a clearer idea of the people you ought to consult.  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.

Understand what you can (and cannot) do – read the Power of Attorney document.  Each Power of Attorney document will differ and you may act only within the powers detailed in the document.  Some of the powers, such as those allowing you to make decisions about care and welfare, can only be used when the granter does not have capacity.  The Power of Attorney document will tell you who is to decide if the granter does not have capacity.  Therefore, read the document carefully and seek the advice of a solicitor where you have any questions. 

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 transactions and decisions which you have made whether financial or welfare.  It is important to narrate why any decisions were made.  For example, the granter has previously expressed their view while they had capacity, or following discussion with the family and others, it was agreed this was the decision the granter would make.

Know when to seek help – read the Code of Conduct or contact the Office of the Public Guardian who provide good 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.

Be aware of conflicts of interest
Disputes can arise regarding the attorney granting to themselves in their appointed capacity.  In these circumstances, we recommend you firstly understand whether you can undertake such a transaction, secondly, take advice from a solicitor if you are in any doubt and thirdly, where you undertake any transaction from which you may directly or indirectly receive a benefit keep very detailed records. 

The responsibility of being an attorney is a great one so ensure, if you are selected, you are fully aware of your role. Getting these things right early on will hopefully avoid any unnecessary disputes and mean that in the future everything goes to plan.

If you would like more information on powers of attorney and what is involved, please get in touch.

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