HOW DECISIONS ARE MADE

A Lasting Power of Attorney can allow your attorneys to do as little or as much as you need, depending on how your health progresses.  It could be that during your lifetime you have no mental health problems but your physical health may suffer – even if just frailty with old age.  An example might be that you are still happy to do the day to day running of your household, but need a bit of help dealing with, say, a specific financial issue or domestic issue such as dealing with a bank or utility company.

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Having an Lasting Power of Attorney for Property and Financial Affairs means that you could ask your attorneys for help when you have no mental health issues but are just finding it difficult to cope.  It certainly does not mean that you no longer have a say in your affairs.  This would only happen if your mental health failed to a point where you could no longer make decisions for yourself, and even then your attorneys would have to respect your instructions and wishes.

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To reiterate: attorneys must always respect your wishes – even if they don’t always agree.

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When an attorney makes decisions on your behalf, it’s still your wishes and your consent that is paramount. Each and every decision that they make must preceded by seeking your directions on what you would like to happen and not what they think is best for you. They must also:

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• follow any instructions that you have included in the Lasting Power of Attorney which they are legally obliged to do

• consider any preferences that you have included in the Lasting Power of Attorney, though these aren’t legally binding due regard must be paid to them

• help you make your own decisions as much as they can

• make any decisions in the donor’s best interests

• respect the donor’s human and civil rights

• allow you to make a decision even if they don’t personally agree with you

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Attorneys must keep records and details of expenses. They must keep a record of:

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• important decisions  they make and when, for example selling the donor’s home or agreeing to medical treatment

• the donor’s assets, income and how  they spend your money - if  they are your finance and property affairs attorney

• details of professional advice sought

• any disagreements between the attorneys if you have more than one

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Attorneys can be ordered to repay the donor’s money if they misuse it or make decisions to benefit themselves.

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There are restrictions on what expenses an attorney can claim. They can only claim expenses for things  they must do to carry out  their role as an attorney, for example:

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• hiring a professional e.g. an accountant to do the donor’s tax return

• travel costs

• stationery

• postage

• phone calls

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Attorneys must keep records and receipts and invoice the donor for any expenses. The money is paid by whoever’s in charge of the donor’s funds.