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Acting as an Attorney
If you are acting as an attorney for a person that has lost their mental capacity, you have a host of duties and responsibilities that you must act on. Our expert Court of Protection solicitors can assist you throughout your role as an attorney by offering advice on issues, queries or concerns you may encounter through the role.
To speak to a solicitor about acting as an attorney, contact JMW Solicitors today by calling 0345 872 6666, or fill in our online enquiry form to request a call back. If you’re looking to set up a lasting power of attorney, please visit our dedicated page.
How JMW Can Help
We can assist you with any Court of Protection applications you are required to make, including those involving selling or purchasing property, making a gift, creating or amending a will, along with many other types of application.
Our solicitors can also be appointed as an attorney, which can often avoid disputes with other members of the family and removes the possibility of conflicting interests becoming an issue.
The team has a strong track record of successfully handling issues involving vulnerable and/or incapacitated clients. We are able to provide support, guidance and opportunities to vulnerable people and their support network, and are always fully informed of the latest industry standards, legislation and training so we can offer the best service to our clients.
Uniquely, the team speaks 15 other languages between them; Arabic, Cantonese, French, German, Hindi, Hokkien, Malayalam, Mandarin, Punjabi, Spanish, Taiwanese, Thai, Turkish, Urdu and Welsh. By supporting those clients whose first language is not English, they are able to gain a greater understanding of their best interests.
What is the Role of an Attorney?
Your primary role is to act in the best interests of the person you are appointed to act for when making decisions. You must also keep in mind the principles of the Mental Capacity Act 2005, the wishes of the person you act for and the Court of Protection’s own practice directions and guidance.
There are five principles that you must follow when appointed as an attorney, these are:
1. It should be assumed that everyone has the capacity to make their own decisions, unless it is proven otherwise.
2. A person should have all the help and support possible to make and communicate their own decisions before anyone concludes that they lack the capacity to do so.
3. A person should not be treated as lacking capacity just because they make an unwise decision.
4. Actions or decisions carried out on behalf of someone who lacks capacity must be in their own best interests.
5. Actions or decisions carried out on behalf of someone who lacks capacity should limit their rights and freedom of action as little as possible.
You must take care not to place yourself in a position of potential conflict with the incapacitated person and their interests.
What decisions can be made by an attorney?
When an attorney takes over the decisions for a person who has lost their mental capacity, the following decisions can be made on their behalf:
- Buying/selling a property
- Operating bank accounts and paying bills
- Claiming and using benefits
- Investing the appointed person’s savings
- Insuring and maintaining the appointed person’s property
- Purchasing items and equipment for the appointed person
How can an attorney act in the best interests of the person they are appointed to?
All decisions made on behalf of the person you’re appointed should be made in their best interests. For instance, attorneys must:
- Consider the person’s past and present feelings, beliefs and values
- Consult with the person’s close relatives
- Respect the person’s confidentiality
- Always check with the person you’re making decisions for as they may have an opinion or be able to make the decision themselves
- Always act in good faith
Can an attorney make gifts from the appointed person’s funds?
Attorneys must be careful when making any gifts from an appointed person’s funds as this may result in action being taken by the Court of Protection. Attorneys should seek legal advice before making gifts as there are strict limitations on what type of gifts can be made on someone else’s behalf. For more information on making a gift as an attorney, visit our dedicated page.