The current pandemic has refocused our minds on the real possibility that someone we know could get seriously ill with the virus. If that person becomes incapacitated in that they can’t make decisions for themselves, then their Legal Power of Attorney (LPA) will be activated, and an attorney appointed by them will manage their affairs.
Types of Legal Power of Attorney
There are two kinds of LPAs:
- Property and financial affairs
- Health and welfare
A person can have one or both types of LPA, each with different attorneys if they wish.
The responsibilities of an attorney
If you are a named attorney on a LPA for someone else, the pandemic doesn’t change your responsibilities for looking after their affairs. The same applies if you have been authorised by the Court of Protection as someone’s deputy.
As an attorney, under the Mental Capacity Act Code of Practice, you must:
- Assume the person can make their own decisions unless it is established that they can’t.
- Take all practical steps to help the person make as many of their own decisions as possible.
- Act in the person’s best interests.
- Think about ways to help the person make decisions in.
- NOT consider that if the person makes an unwise decision, they are incapable of making a decision at all.
Being an attorney in lockdown 3.0
The practicalities and logistics of being an attorney or deputy are certainly made more difficult by the current lockdown restrictions, social distancing and the need to protect your own health and that of your family. The Office of the Public Guardian has issued some guidance for attorneys which aims to help you fulfil your role but not place yourself at unnecessary risk.
There are various scenarios where contact with any other person outside of your household is either not permitted or a risk to your health. These include if:
- You are aged over 60
- You are clinically vulnerable / shielding
- You are self-isolating or in a household where another person is self-isolating
- You are sick with COVID or a transmittable disease
Inability to visit a person due to high risk
If you need to make a decision and would normally pop round and visit the person to consult on their decision, this clearly isn’t possible during lockdown. Instead, keep you and the person you’re acting for safe by calling them, talking on a video call, by letter or by asking a member of their care team to pass on a message.
This may not be possible (or indeed perhaps advisable) if that person is in hospital where contact, let alone confidential contact, is difficult. At this point, think, “What would that person say to me?” and imagine their response. Also, look back at similar decisions made in the past for any precedents to draw on.
Help from other people
Being an attorney may involve having to do certain activities from shopping to banking a cheque. If you can’t do these in person due to shielding or one of the reasons above, consider if someone else could help, whether that person’s care team, local charity, or local volunteers. Consider remote means at your disposal, such as:
- Home deliveries
- Courier services and local taxi firms to take packages
- Royal Mail – the postal service is slow at the moment but it’s still working
- Internet banking/BACS for money transfers
Include your fellow attorneys
If the LPA details multiple attorneys, and can make decisions jointly or severally, you can share the workload between you. So, those less at risk might take on what you cannot. Do check the LPA details, as some attorneys may not be able to make certain decisions.
Decisions about medical care and treatments
This can be tough whether you’re a family member or not. Your legal requirement as an attorney is to consider the options available, and choose what is in the person’s best interests. So, make time to talk to as many people as you need to understand the various choices, and reach the best decision you can from the information available.
The pause button for attorneys and deputies
You cannot stop being an attorney or deputy temporarily, so once the LPA is activated, you need to act as the attorney. Of course, if the person gets better and is capable of looking after their own affairs, then you can deactivate the LPA, and let them continue.
You can ‘disclaim’ your role as an attorney, or apply to the court to permanently end your role as a deputy. However, do bear in mind this could leave the person who appointed you without the level of help and support they need.
Why LPAs are so important right now
As the statistics remind us, COVID-19 can infect anyone of almost any age and leave them seriously sick in a short space of time. The good news is that the treatments available are improving every day, and more people are recovering from the disease more quickly.
However, that doesn’t mean the minute they are off the danger list or even out of hospital that they are capable of managing their affairs. As an attorney, your involvement may last for several months while they recover their physical and mental strength.
As their LPA attorney, you enable them to focus on their recovery, confident that their affairs are in order, and that you are looking out for their best interests.
Set up your own LPAs
Choosing your attorneys is the first step in setting up an LPA. You need to talk to those you want to appoint and check they are willing to take on the responsibility. You should definitely consider having more than one attorney, and therefore also consider who would work well with whom, to avoid disagreements.
Setting up your own LPAs is a straightforward process but it does require attention to detail and strict rules apply to the checking and witnessing of the form signing procedure. It also takes some weeks to come into effect. Contact us for helping setting up LPAs for yourself and/or members of your family.
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