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Have your responsibilities as an attorney changed during coronavirus/COVID-19?

The coronavirus/COVID-19 outbreak has raised many questions relating to wills, probate and powers of attorney. One of the questions that we have been asked quite a few times is:

Last updated on May 6th, 2020 at 02:54 pm

“My mother named me as an attorney in her power of attorney.  How do I carry out my duties during this coronavirus crisis?”

attorney coronavirus

Ellie Bowater

Here, our private client advisor, Ellie Bowater, offers some advice to those people who are unsure what they should do as an attorney during the coronavirus/COVID-19 crisis.

Have my responsibilities as an attorney changed during coronavirus/COVID-19?

No, the crisis has not changed your responsibilities as an attorney.  They remain the same.

Firstly, a lasting power of attorney (LPA) must be registered with the Office of the Public Guardian for it to be valid. There are two types of LPA.  If you are an attorney for a health and welfare power of attorney, the person who gave you that power must have lost mental capacity for you to be able to act and make any decision on their behalf.  If you are an attorney for a property and affairs power of attorney, you can act on the donor’s behalf whilst they still have mental capacity if they have given you that power within the LPA.

As an attorney, acting on behalf of a donor, you must make the relevant decisions yourself.  You cannot ask someone else to make them for you.  You must:

  • Follow the instructions within the LPA
  • Take note of the donor’s preferences within the LPA
  • Allow the donor to make their own decisions as far as is possible and help with making those decisions
  • Ensure that any decisions you make are in the donor’s best interests
  • Respect the donor’s human and civil rights

You can get the government’s full guidance on being an attorney here.

I need to talk to the donor before I make a decision, what can I do?

Whilst your responsibilities remain the same, you must still follow the government’s advice on social distancing.  Full details of this can be found in the guidance and support page on the government’s website.

If possible, try to use the telephone or a video call to discuss matters with the donor.  If the donor has a care worker, you could ask them to relay the information necessary.  You could also look back at how the donor has responded to similar questions in the past and use that information to help make your decisions.  If the matter is not urgent, try to delay it until you are able to talk to the donor.

I am self-isolating, what can I do?

Your responsibility to make decisions as an attorney remains the same, whether you are self-isolating or not.  However, whilst you cannot ask someone else to make the decision, you can ask them to carry out any actions that are necessary as a result of your decision if you are unable to do it yourself.

Can I ask the donor’s care worker or GP to make a decision relating to their health and care?

No, if you are an attorney in a health and welfare LPA, you must make the necessary decisions yourself.  You cannot leave that to someone else, even if they are a doctor or healthcare worker.  The government offers useful advice on making decisions on someone else’s behalf here.

Can I give money to anyone?

You can only give money to people, including family and friends, based on what is specified in an LPA.  There are strict rules about using the donor’s money to give gifts, which include:

  • What constitutes a gift
  • When a loan is a gift
  • Who you can give gifts to, and when
  • What happens if you give a gift beyond your authority as an attorney

You can find the government’s full guidance on giving gifts here.  If you want to give a gift that doesn’t fit within your authority given in the LPA, you must apply to the Court of Protection for permission.

Can I stop being an attorney temporarily?

No, you cannot give up your role as an attorney temporarily.  If you wish to stop being an attorney within an LPA, you have to give up that role permanently.  Of course, this could leave the person who made you an attorney vulnerable, so you should think carefully before doing this.

If you would any like further information about lasting powers of attorney, please contact Ellie Bowater on 0114 241 9078 or you can email her at [email protected].

Author:  Ellie Bowater, private client advisor.

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