Introduction
The article explains the duties of an attorney for personal affairs under the Mental Capacity Act 2007.
This article should be read in conjunction with the other Net Lawman articles on Lasting Powers of Attorney. Links are available at the end this article.
This is not part of the ‘prescribed information’ that a donor must read before making the Lasting Power of Attorney, nor is it a pre-requisite for an attorney to read this, however, it is very much recommended.
What is a Personal Welfare LPA?
A Personal Welfare LPA is a document that allows a donor to choose an attorney to make decisions on their behalf about their personal welfare. This does not include decisions about money or property. It can only be used when the Donor lacks the capacity to make these decisions for themselves.
An Attorney will not be able to make decisions about a Donor’s property and affairs unless they have also been appointed as a Property and Affairs Attorney using a separate LPA.
What are my duties as an attorney?
There are five simple rules. You must:
- act in the best interests of the donor by considering their needs and wishes regards their health and personal welfare;
- not take advantage of the donor’s position to gain any benefit for yourself;
- act in accordance with the Act’s principles;
- have regard to the guidance in the Code of Practice; and
- act only within the scope of your authority as Attorney.
What will my role be if I am asked to act with another Attorney?
This will depend on how you have been appointed to act by the Donor in the LPA. You may be appointed to act:
Jointly – This means all Attorneys appointed in the LPA must agree on a decision, or all attorneys must sign a relevant document. For example, all attorneys appointed together would have to agree where the Donor was to live.
Appointing Attorneys to act together is sometimes used as a safeguard by the Donor. However, appointing lots of Attorneys can make it difficult for them to make decisions. Of course the LPA could be cancelled if Attorneys appointed together cannot work together or one of them dies or loses the capacity to act.
Jointly and severally - each Attorney appointed can act on their own when making decisions on behalf of the Donor and that the Attorneys can also act together. This means that any one of the Attorneys appointed together and independently can decide on a particular issue.
Even if you are appointed with other Attorneys to act together and independently it is important to discuss any decisions you are making with the other Attorneys, where relevant, before you make them, to avoid any conflicts whilst the LPA is being operated.
Together in respect of some matters and together and independently in respect of other matters – all Attorneys are required to agree on certain specified decisions but can act on their own when making other decisions. For example, the Donor may state that all Attorneys must agree on any decision relating to medical treatment, but can act on their own in deciding in which nursing home they live.
The Donor will need to clearly set out what these matters are in their LPA.
Please note: It is very important to remember that if the Donor decides to appoint more than one Attorney but does not specify in the LPA how they have appointed them, they will automatically be appointed to act jointly.
Can I charge for my services?
If you are acting in the course of your business, say as a solicitor or accountant, then you may charge a reasonable fee. We advise you keep a record of any agreed fees. There is a space on the LPA form for the Donor to record the fees that you have agreed with them.
Otherwise, no. However, you can claim out-of-pocket expenses provided that they are directly in proportion to the Donor’s estate and the duties you undertake. This includes telephone calls, postage charges and transport costs that are incurred whilst specifically undertaking your duties as Attorney.
What happens when the donor dies?
The LPA will automatically end. Send the original LPA and the death certificate to the guardianship office as soon as possible. You will then need to contact a probate solicitor to help you to deal with the donor’s estate.
Can I decide where the Donor lives?
Yes, as long as there are no restrictions within the LPA stopping you from doing this.
Of course you should also discuss this decision with any Attorneys appointed under an EPA or a Property and Affairs LPA as your decision may be dependent on the Donor’s financial situation.
Can I sell the Donor’s house?
No. A Personal Welfare LPA does not cover decisions of this type.
Can I consent to or refuse medical treatment on the Donor’s behalf?
Yes, unless the Donor has included a restriction in the LPA preventing you from doing so. You must make such decisions in the Donor’s best interests, taking into account their wishes and feelings as well as any conditions they have included in the LPA.
Can I make decisions about life-sustaining medical treatment on the Donor’s behalf?
You can only make such decisions if the Donor has signed section 6 of their LPA and indicated that they wish you to make such decisions. If you are making a decision about the provision or withdrawal of life-sustaining treatment you must not be motivated by a desire to bring about the person’s death. However, you could decide to withhold treatment, even if this means the person will die, if this would be in their best interests, for example, if the treatment is burdensome or is not having any effect.
Are there certain decisions I cannot make?
You must only act within the powers of the LPA, including any restrictions or conditions.
The Act further prevents you from making decisions on behalf of the Donor on the following matters:
- consenting to marriage or civil partnership;
- consenting to a decree of divorce being granted on the basis of two years’ separation;
- consenting to a dissolution order being made in relation to a civil partnership on the basis of two years’ separation;
- consenting to sexual relations;
- giving the Donor medical treatment for a mental disorder or consenting to the Donor being given medical treatment for a mental disorder if the person’s treatment is regulated by Part 4 of the Mental Health Act 1983; and
- deciding to vote.
Useful Contacts
Public Guardianship Office
Archway Tower
2 Junction Road
London
N19 5SZ
(The Court of Protection is at the same address)
Relevant Documents:
Related information articles:
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