Making decisions as an Attorney or Deputy
Being appointed as an Attorney or Deputy can be a daunting and overwhelming task. You are given a wide range of authority over another person’s estate if they lose mental capacity and you become the decision maker for another person – not an easy task.
When acting as an Attorney or Deputy, it is easy to second guess yourself and take the weight on your shoulders. One cannot underestimate the hard task of acting on behalf of another person and the constant worry of whether you’re doing right thing.
The Mental Capacity Act 2005 governs how to act as an Attorney or Deputy and sets out golden rules for decision making. These are:
The person should always make their own decisions until it can be shown that they’re unable
The person should receive all the help and aids they need in order to make a decision themselves
Just because a person makes an unwise decision does not mean that they lack mental capacity, regardless of their circumstances.
All decisions must be made in the persons best interests; and
Anything completed on behalf of an incapacitated person should not restrict their rights to freedom.
In order to make decisions on behalf of another, it is important that you understand the key rule of always acting in their best interests. The decision making has to be right for the person, regardless of your own personal feelings or to suit other people. This can be difficult and to ensure you follow this rule, consider:
Did the person leave you any instructions within the Lasting Power of Attorney to assist you with managing their estate?
Consider the values and wishes of the person, including moral, political or religious views.
Consider the past wishes and feelings of the person – has this situation come before?
Do not make decisions and assumptions based on the persons age, gender, background or behaviour.
Consider whether the persons capacity may regain and if the decision can wait.
The most important rule when acting as an Attorney or Deputy is record keeping (not just financially). It is best practice to keep records of everything you do – keep notes of why you made a specific decision and how you followed the Mental Capacity Act 2005.
If you need assistance relating to the duties of an Attorney or Deputy, do not hesitate to contact our specialist team of lawyers who would be happy to assist you.