Attorney’s
Guide
Who can be an attorney?
In legal terms, an ‘attorney’ is a person who’s allowed to act on behalf of someone.
Attorneys don’t need to be solicitors. Most people choose family members
friends and other people they trust with no legal background. If an attorney is not a professional, the important thing is that you know each other well and they respect your views and will act in your best interests.
You can ask anyone with mental capacity aged 18 or over to be your attorney, including:
your wife, husband, civil partner or partner
a family member
a close friend
a professional, such as a solicitor
What attorneys must do
Attorneys can make some decisions on your behalf, but they can’t do as they please. They always have to act in your best interests.
The Mental Capacity Act Code of Practice goes into this much more fully. It sets out five basic principles an attorney has to follow when working out whether and how to act on your behalf:
Your attorneys must assume that you can make your own decisions unless it is established that you cannot do so.
Your attorneys must help you to make as many of your own decisions as you can. They must take all practical steps to help you to make a decision. They can only treat you as unable to make a decision if they have not succeeded in helping you make a decision through those steps.
Your attorneys must not treat you as unable to make a decision simply because you make an unwise decision.
- Your attorneys must act and make decisions in your best interests when you are unable to make a decision.
- Before your attorneys make a decision or act for you, they must consider whether they can make the decision or act in a way that is less restrictive of your rights and freedoms but still achieves the purpose.
Attorneys always have to follow these principles.
You can find the Mental Capacity Act Code of Practice at www.gov.uk/opg/mca-code
If you’ve chosen two or more attorneys, you must state how they should make decisions on your behalf.
jointly and severally
jointly
jointly for some decisions, jointly and severally for other decisions
Most people choose ‘jointly and severally’ because it is the most flexible and practical way for attorneys to make decisions.
Jointly and severally (attorneys act either together or individually)
Your attorneys can make decisions on your behalf on their own or together.
Any action taken by any attorney alone is as valid as if they were the only attorney. It’s up to your attorneys to choose how they make decisions but they must always act in your best interests.
Most people choose this option because:
attorneys can make simple or urgent decisions quickly and easily, without asking your other attorneys
if an attorney can no longer act, the LPA won’t be cancelled
Jointly (attorneys agree every decision unanimously)
Your attorneys must always make all decisions together. They must agree unanimously and they must all sign any relevant documents.
Choose this option if you want your attorneys to agree on every decision, whether it’s big or small. If your attorneys can’t all agree on a decision, it can’t be made.
Alternatively, you can choose that your financial LPA will take effect – and your attorneys will be able to act for you – only when you don’t have mental capacity.A financial LPA can usually be used as soon as it’s registered. If you have mental capacity, you can tell your attorneys to start using the LPA straight away. If you then lose mental capacity, they can carry on using the LPA.
As soon as my LPA has been registered (and also when I don’t have mental capacity)
Mark this box with an ‘X’ if you want your attorneys to help you with your finances while you have mental capacity.
For example, if you can’t leave the house or it’s hard to talk to your electricity supplier, you might ask your attorneys to deal with the bank or pay bills. You could ask your attorneys to act for you if you are away – for example, on holiday.
Banks and other financial institutions sometimes want written confirmation that a donor does not have mental capacity before they’ll recognise an attorney’s authority to act under an LPA.
Ask the donor’s GP, care co-ordinator, social worker or care home staff about a mental capacity assessment.
You will not be able to complete the forms without confimation that you have read the guide.
