22 May 2020

Doing the right thing: Acting as an Attorney in a time of Coronavirus

By Miranda Marshall, Director, Hayes + Storr.

Attorneys are facing particular challenges in fulfilling their duties under a Power of Attorney during the Covid-19 lockdown, while vulnerable people may feel lonely and distressed.

The duties of an Attorney under a Power of Attorney (whether ‘Lasting’ or ‘Enduring’) remains unchanged by Covid-19. It is how that role is carried out that is changed, and changing. The same applies to those appointed as a Deputy (what used to be called a ‘Receiver’) under an Order of the Court of Protection.

In acting as an Attorney, the best interests of the person for whom you are acting (known as the ‘Donor’) must be central to every decision you make. The Government advice is clear to those who are particularly vulnerable and self-isolating, and even more so those ‘shielding’. If the person for whom you are Attorney lacks mental capacity, they may not understand the need for self-isolation, even to the extent of hostility or downright refusal to comply. If so, the Attorney should help their understanding by stopping their visits too, even if this is confusing or upsetting for the person.

It is more important than ever to make sure that the person feels secure and cared for. Isolation can be particularly distressing if someone is unable to understand why they are going without visitors for long periods. Staying in contact by telephone, or by sending cards, letters and little gifts by post, can help ease their loneliness.

It is vital that Attorneys and carers work together for the best interests of the person they are looking after. Now more than ever the Attorney should stay in touch with the person’s care team to ensure that their needs are being met.

If the person has made a Lasting Power of Attorney (“LPA”) for Health and Welfare, it may only be used if they lack the mental capacity to make the health or welfare decision for themselves. Every decision is time and decision specific; so it is ‘shades of grey’ not ‘black and white’. They may have sufficient capacity to make some care or treatment decisions, but not others. Health and welfare decisions cannot be delegated. Everyone is presumed to have mental capacity, unless it is proven otherwise. If you are unsure about whether you should be acting, you should seek advice.

Where an elderly relative is self-isolating and cannot get to the bank, they might wish to put in place a simple authority to enable their banking to be handled by others. Internet banking is ‘blind’ to the person managing the account, which can be very helpful, but with appropriate safeguards and, of course, full consultation before any transaction.

A wider-ranging step would be to grant a Lasting Power of Attorney for Property and Financial Affairs which will grant the Attorney authority to manage their finances; but may be too slow and complicated in these restricted times. The LPA must be registered with the Office of the Public Guardian to be effective (you are looking at 3 months to prepare and register). If your relative has mental capacity and only requires help during this specific time a General Power of Attorney may be more appropriate, as well as quicker and cheaper. A General Power of Attorney should have limits as to the power given.

In all cases, the person making the Power of Attorney should seek professional advice on the best solution (both short and longer term) for them before signing any legal document.

Do not be afraid to seek advice from your solicitor, if you are in any doubt what you should (or should not) be doing, either for yourself or your relative/friend. We are the local friendly specialists and are here to help. Always look for a Solicitor who is also an accredited member of the specialist group Solicitors for the Elderly (SfE), which has been a leader in this field for 25 years.

I wish you all good health. Please be alert and keep safe.

If you would like further advice on this matter please contact Miranda on 01328 713913. If you require advice on any other legal matter call 01328 863231 or email law@hayes-storr.com.

This article aims to supply general information, but it is not intended to constitute advice. Every effort is made to ensure that the law referred to is correct at the date of publication and to avoid any statement which may mislead. However no duty of care is assumed to any person and no liability is accepted for any omission or inaccuracy. Always seek our specific advice.