Legal advice for lay deputies and attorneys

Advising lay deputies and attorneys

We understand the responsibility that comes with being appointed as an attorney or deputy for a vulnerable loved one. It can often be a stressful and overwhelming time.

When someone who isn’t a professional is appointed as a deputy attorney, they are known as lay attorneys or lay deputies. Our solciitors have a wealth of experience in supporting and advising clients who are appointed as lay attorneys or deputies.

What is the difference between an attorney and deputy?

Both make decisions in the best interests of a person who no longer has mental capacity.

An attorney is a person appointed under a Lasting Power of Attorney or an Enduring Power of Attorney. It’s up to an individual to make their own legal agreement if they have capacity to do so, and to choose who should act for them.

A deputy is a person who is appointed by the Court of Protection. This is needed when an individual no longer has mental capacity to grant a Lasting or Enduring Power of Attorney and choose their own attorneys.

What decisions are attorneys and deputies able to make?

The decisions an attorney or deputy can make will entirely depend on the document that they have been appointed under. For example, an Enduring Power of Attorney limits the attorney to making financial decisions only. A Lasting Power of Attorney or Deputyship will specify whether those appointed can make welfare or financial decisions.

It is important for the appointed attorney or deputy to read the legal document very carefully to understand what decisions they can make. The document may provide specific instructions that must be followed. Generally, attorneys and deputies will make decisions for a person surrounding the following:

• Managing their bank accounts and investments
• Paying bills
• Buying or selling property (a deputyship order must specifically authorise this)
• Deciding where the person will live and receive care
• Consenting or refusing life sustaining medical treatment (authority to make this decision must be specifically given)

Decisions must always be made in the person’s best interests. Attorneys and deputies should always consider the principles set out in the Mental Capacity Act 2005 when making decisions on another person’s behalf.

Are there any restrictions on the powers attorneys and deputies are given?

Again, attorneys and deputies should always carefully read the document that they have been appointed under to check whether it contains any restrictions. However, there are some general restrictions that state that attorneys and deputies cannot:

• Give gifts out of the person’s funds except on customary occasions, such as birthdays or anniversaries
• Benefit from their appointment – for example, selling or transferring the person’s assets to themselves
• Pay themselves a fee for acting in their appointment

If an attorney or deputy does not have the authority to make a specific decision, they may need to apply to the Court of Protection to request authorisation or to ask the Court to make that decision. These can be complicated applications and we would recommend seeking legal advice first.

Can someone dispute an attorney or deputyship appointment?

You may have been made aware that a person has made an Enduring or Lasting Power of Attorney or that a Deputyship Order has been granted and you wish to dispute it. This may be because you feel that the person did not have the necessary capacity to make the power of attorney at the time. Or that the wrong person has been appointed to help them. You may even have concerns that the power of attorney was created fraudulently.

Disputing an attorney or deputyship appointment can be a complicated process. The route you should take will depend on whether the application is still in process or if the appointment has already been made. We can advise on this.

What happens if an attorney or deputy is acting inappropriately?

You may have concerns that an attorney or deputy is not acting in the best interests of the person they are making decisions for. Or you may be facing challenges in respect of your own actions.

Anyone who has concerns over an attorney’s or deputy’s conduct has the option to make a report to the Office of the Public Guardian (OPG) – the public body who support and supervise attorneys. The OPG have the power to investigate and refer matters to the Court of Protection if they believe an attorney has acted inappropriately and should be removed or have their powers limited. The formalities of the Court can be complex so it is best to seek legal advice before proceeding.

How can Rothera Bray help?

• We have considerable experience advising attorneys and deputies on their responsibilities and duties when making decisions on behalf of another person
• We act as professional attorneys and deputies ourselves and so have a comprehensive understanding of the challenges faced when acting on another person’s behalf
• We can help advise clients looking to dispute the appointment of an attorney or deputy
• We can provide advice where conflicts have arisen between attorneys and deputies appointed to act together
• We can provide advice if you have concerns regarding the conduct of an attorney or deputy, or if you are facing challenges in respect of your own appointment

Get in touch to discuss your needs.