When you agree to act or are already acting as an Attorney it is vital to understand the legal duties and responsibilities that are involved. You should also understand how you can become legally liable in some situations.
An Attorney acts as an agent of the person who appoints them (this person is usually referred to as ‘the Donor’).
An Attorney has the following principal duties
- To act within the scope of the Power of Attorney document (that appoints them). You must read and understand the document appointing you.
- A duty of care
- A duty not to delegate
- A duty not to take advantage of the position
- A duty of good faith
- To keep accounts
- Not to make gifts of the Donor’s property/money except as permitted by Section 12 of The Mental Capacity Act
- To keep the Donor’s money and property entirely separate
- A duty of confidentiality
- To comply with any directions of the Court
- Not to disclaim (stand down) without notifying the Donor and the Court
- To act in the best interests of an incapacitated Donor at all times
- There are statutory and other legal duties in relation to making and managing investments for the Donor which you must follow
- An Attorney should be familiar with the Mental Capacity Act 2005 Code of Practice
An Attorney who fails to comply with these duties cannot rely on a defence of ignorance.
It is also important to understand how you may become legally liable as an Attorney. You should consider at all times the ways in which you should limit your personal liability and the potential liability of the Donor for whom you act. This is because you are the legal agent of the Donor.
When you make any contract on behalf of a Donor it is important to make it clear that the contract is being made on the Donor’s behalf and not personally by you.
The words of the contract (e.g. care home agreement or contract for household repairs) and the conduct of the parties to the contract are important to determine who is ultimately liable for what. Sometimes words alone will not be enough to limit liability, if the actions and conduct of the parties are inconsistent with the words used.
When you carry out an act or make an agreement or contract as Attorney or make a contract on behalf of the Donor you are deemed automatically to warrant (a legally binding promise) that you have the necessary authority to do the act or make the contract in question. If you do not have authority you may be sued if the contractor suffers some loss as a consequence.
Attorneys should always take legal advice before entering into any onerous obligations or contracts on behalf of the Donor. The reasonable costs can be paid from the Donor’s money.
For everyone’s protection an Attorney should always act in accordance with the duties described above.
With this knowledge Donors should consider the role of an Attorney very carefully before deciding who to appoint. Make sure that your chosen Attorneys understand the role and are willing and capable of fulfilling the duties that they will owe.
Consider the following:
- The chosen Attorney’s skills and personal situation
- Do they have experience of managing a significant amount of money and property ownership?
- Do they have a known history of good personal financial management?
- Are they in good health?
- Do they have other commitments which would limit their time to be able to make decisions?
Professional attorneys are paid to act (this is usually authorised by the document appointing them), they owe the highest duty of care and will be insured in respect of most liabilities.
Attorneys who are not professionals do not get paid, are not insured and usually are only entitled to recover their out of pocket expenses.