The Role Of the Attorney1st December 2017

Financial abuse in the elderly and vulnerable is a real problem and, as highlighted by the media, it can sometimes be the relatives who are taking advantage of vulnerable members of their families particularly when they are acting as an Attorney via a Lasting or Enduring Power of Attorney.

While media attention usually focuses on abuse t is however important to remember that this is not the norm. The vast majority of families protect one another; they genuinely act in the best interest of their loved one. While acting in the best interest is a duty set by the Mental Capacity Act it is also a natural instinct in most families.

The idea of what is in the best interests can however be misunderstood. Many people believe they are acting in the best interests of an individual but this line can be easily blurred and intention can easily shift to acting in the best interests of future beneficiaries of an estate. This is particularly the case for very elderly and infirm donors (the person who made the power of attorney).

An Attorney can be named to act as an Attorney for property and financial affairs and/or for health and welfare. The role of an Attorney is very important and brings with it a lot of responsibility and the decision to act, or indeed name an Attorney, should not be taken lightly.

When a Lasting Power of Attorney is prepared the person giving the power (know as the donor) chooses their Attorney on the basis they trust them to act in their best interests. The Attorney should be a person or persons the donor trusts as they are essentially allowing the Attorney to have the same power they do in relation to the property and finances and also the power to make decision about their health and welfare.

If you are acting as an Attorney for a family member or a close friend it is vital that you understand what your duty is and what you should be doing to remain within the realms of your power. The Office of the Public Guardian have a fact sheet on their gov.uk website which is very helpful but if you do have any concerns or queries about your power and what you should or should not be doing it is always best to seek the advice of a solicitor.

On the other hand – if you are considering making a power of Attorney it is important to choose the right Attorney or Attorneys and for you yourself to understand the power you are giving.

At EMG we can give support to donors and Attorneys both before the power of Attorney is given, or after and when Attorneys have to make decision on behalf of the donor. The duty of an Attorney is ongoing so we are here to support you throughout the role.