A power of attorney is a far reaching document and care should be taken when considering who should act in the role. It is important to remember that these documents allow another to act very much as the donor themselves and it is therefore vitally important that the person can be trusted.
The law requires that an attorney must always act in the best interests of the donor, i.e. the person making the power, however it not always easy to scrutinise the activities of an attorney. There is a helpline provided by the Office of the Public Guardian on 0300 456 0300 to report any abuse of a vulnerable victim and swift action is taken in these situations. A professional can be nominated if there are no members of family or friends who fit the bill and this should be the preferred choice if in any doubt on the suitability of an individual.
The attorney must of course understand their role and responsibility with these documents. There are two types of Lasting Power of Attorney, Property & Finance and Health & Welfare. Both are quite separate documents and an attorney should be aware of the limitations of each power.
Whilst the Lasting Power of Attorney for Health and Welfare can only come into effect if the donor loses mental capacity, it is also true that the attorney can make decisions on life sustaining treatments. Rose & Trust of Bristol have found over the last few years there has been an increase in the amount of people preparing these powers and a proposed attorney should understand how far reaching these documents are.
Whilst an attorney cannot be under 18 or bankrupt, there are very few imposed qualifications and it is left very much up to the donor to decide the suitability of a person. Again if in doubt a professional should be selected or a number of people can be notified of an application to register the document where a lay attorney(s) is nominated. These people can be nominated by the donor at the same time as the document is prepared, and if they have concerns the individuals nominated can object to the registration.
It is also vitally important that the donor and attorney(s) discuss the documents so that there is clarity on how they should be used. Restrictions and conditions can be placed on the documents such as a spending limitation on the Lasting Power of Attorney for Property & Finance, and with regards to the Lasting Power of Attorney for Health & Welfare, what treatments should and should not be received.
Attorneys can be nominated jointly, or jointly and severally. Jointly means that they must always act together and severally means one can act by themselves. This is an important consideration as is whether to appoint a reserve attorney(s). Without a reserve attorney in place, if the principle attorney is unable to act, the power is lost and a new one must be made.
Lasting Power of Attorney is a complex document and extreme care should be taken in the preparation and registration of these documents.