This week marks National Power of Attorney Day, with campaigns and information on social media and TV encouraging us all to start a conversation and put powers of attorney in place. It’s an important protection to have, and puts you firmly in control, knowing that you’ve appointed the people you trust and who know you best, whatever age or stage of life you’re at.
The person granting the POA will have taken advice from their solicitor, made sure the POA suits their circumstances and they’re happy they have appointed the right people.
But what if you are the appointed attorney, what next?
Most people are very willing to act as attorney, comfortable that they know the granter well enough and often feel a familial sense that it’s the right thing to do. But you don’t have to act as attorney if you don’t want to, or aren’t able to. It can be a very involved role, dealing with someone else’s finances and property, perhaps taking on responsibility for decisions about medical treatment and care too. Do ask for more information and start discussing with the granter what their wishes would be in different scenarios.
It can help to have some understanding of when it is appropriate to act and how to make decisions on behalf of the granter.
There is an important distinction between financial/ administrative matters and personal welfare matters – the granter might ask you to help them with their finances, for example, even if they are fully capable of doing so themselves. As long as you have their consent, consult with them closely and follow their instructions, then you can act for them. For welfare matters, such as consenting (or withholding consent) to medical treatment or care, you may only act if the granter does not have capacity.
The registered POA deed is your official authority. To start dealing with finances, the POA should to be taken to the bank, and you will need to provide ID, so that your name can be added to accounts. The same will apply to utility providers, professional advisors, council tax and so on. You should keep careful records of your actions, receipts for payments, notes of discussions you have with the granter.
For personal welfare matters, how do you know if the granter has ‘lost capacity’ and it’s appropriate for you to step in? And how do you then make decisions?
The approach is changing; it is recognised that capacity is not all or nothing, and it’s not a scale that you move along. It very much depends on each individual decision, and all the circumstances surrounding it. As attorney, your role is to assist the granter in making decisions themselves as far as possible, and make sure they have all the information and support they need. There are many things which can influence and impact on decision making.
Most of us can identify with the feeling that after a long, busy, involved day, when you’re feeling tired and your brain is full, perhaps you actually can’t decide what you’d like to eat for dinner – it doesn’t mean you don’t have capacity, it’s just that the circumstances were not conducive. It also doesn’t follow that because you didn’t feel able to make a seemingly simple decision at that time, you can’t then make complex decisions the next day. So, consider things like the best time of day to have discussions with the granter, make sure they are physically comfortable, there is privacy, there is not too much else going on, they (and you) have sufficient information to hand. It’s about assisting the granter in continuing to manage their own affairs for as long as possible.
And remember that there is help and support if you need it. It’s likely that the solicitor who acted for the granter in drawing up the POA will know the granter quite well, and will also have a lot of experience dealing with POAs in all sorts of scenarios. Don’t be afraid to ask for advice, and don’t be afraid to hold back from decisions until you’re sure it’s the right thing to do. And always do what the granter would have done themselves – even if you think they always were a bit eccentric!
Catriona Torrance is an Associate (Private Client) with Balfour+Manson