Appointing a power of attorney (POA) is a significant decision that involves granting someone the authority to manage your affairs if you become unable to do so yourself. In the UK, the responsibilities and obligations of a POA towards family members are governed by specific legal standards to ensure that the rights and best interests of the individual are protected. This blog post will delve into the nature of these obligations, providing clarity and guidance for both those considering appointing a POA and those who may be acting as one.
What is a Power of Attorney?
A power of attorney is a legal document that allows one person (the donor) to appoint one or more individuals (the attorney(s)) to make decisions on their behalf. These decisions can relate to financial affairs, health and welfare, or both, depending on the type of POA established. In the UK, there are primarily two types of POA: Lasting Power of Attorney (LPA) and Ordinary Power of Attorney.
Types of Power of Attorney
- Ordinary Power of Attorney (OPA): This covers decisions about financial affairs and is valid while the donor has mental capacity. It’s often used for temporary situations, such as during a hospital stay.
- Lasting Power of Attorney (LPA): More comprehensive than an OPA, an LPA is effective if the donor loses mental capacity. There are two types:
- Health and Welfare LPA: Allows the attorney to make decisions about things like medical care, living arrangements, and daily routine.
- Property and Financial Affairs LPA: Enables the attorney to manage the donor’s finances, such as handling bank accounts, paying bills, and selling property.
Legal Obligations of a Power of Attorney
When acting under a POA, the attorney has both legal and ethical obligations to the donor. These responsibilities are designed to protect the donor and ensure that the attorney acts in their best interests at all times.
- Act in the Donor’s Best Interests: This is the cornerstone of the attorney’s responsibilities. Every decision must benefit the donor, not the attorney or anyone else.
- Consider the Donor’s Past and Present Wishes: The attorney should consider the donor’s known wishes and feelings, as well as any written statements made when they had capacity.
- Not Benefit Personally: Except where explicitly allowed by the POA document, attorneys must not use the donor’s assets for their own benefit. They should keep their finances separate from the donor’s.
- Make Decisions Independently: Unless the POA specifies that attorneys must act jointly, they should make decisions independently in the donor’s best interests.
- Confidentiality: Attorneys must keep the donor’s affairs confidential unless required by law to disclose information.
The Role of Attorneys in Decision-Making
Attorneys are granted considerable power under a POA, but they must follow specific guidelines when making decisions:
- Financial Decisions: Must be made with care, skill, and caution, considering the size and nature of the donor’s estate.
- Healthcare Decisions: Should be made in consultation with medical professionals and by considering what the donor would have wanted.
- Living Arrangements: Attorneys might need to decide where the donor should live, taking into account the donor’s preferences and social contacts.
Accountability and Monitoring
Attorneys are accountable for their actions. They must:
- Keep Records: Maintain detailed records of all decisions and transactions made on behalf of the donor.
- Provide Updates: Regularly update the donor (if they have capacity) and potentially other family members on significant decisions, respecting privacy and confidentiality guidelines.
- Regulatory Oversight: In England and Wales, the Office of the Public Guardian (OPG) oversees the actions of attorneys. Attorneys may be required to submit reports or be subject to investigations if there are concerns about their actions.
Challenges and Resolutions
While most attorneys perform their duties conscientiously, conflicts can arise. Family members who suspect misconduct can raise concerns with the OPG, which has the power to investigate and take action if necessary. Legal advice may also be sought to resolve disputes or clarify legal obligations.
Conclusion
The role of a power of attorney is both powerful and pivotal, requiring a high level of trust and responsibility. For family members, understanding these obligations is crucial to ensuring that their loved ones are cared for properly and that their affairs are managed in accordance with legal and ethical standards. It is always recommended that both potential donors and attorneys seek legal advice to fully understand their rights and responsibilities before entering into such agreements. This ensures that all actions taken under the power of attorney are lawful, ethical, and in the best interests of the donor, providing peace of mind for everyone involved.
