UK: Your Questions Answered: So, You've Been Appointed As An Attorney. What Happens Next?

If you have been appointed as an attorney, there are some important considerations and next steps which should be on your radar.

So, you've signed your Attorney Declaration Form, confirming that you're willing to act as an attorney for your friend or loved one. You're probably feeling pretty touched to have been entrusted with such a significant role, but you might also be feeling a little apprehensive about the responsibilities it may bring.

What happens next will largely depend on what kind of attorney you have been appointed as and in which capacity you have been appointed. So, while the solicitor who prepared the Power of Attorney gets to work on registering it with the Office of the Public Guardian (OPG), you have the opportunity to get to grips with the document which has appointed you with your various duties.

A key point to understand from the outset, is that your role as attorney is likely to change and evolve during the course of your appointment. Initially it may be the case that you don't need to do anything if the friend or loved one who appointed you (we'll refer to them as "the Granter") retains capacity, or they simply do not require your help yet.

Alternatively, the Granter may ask for you to assist them with matters straight away, notwithstanding the fact that they retain capacity, and your role as attorney will now begin. If you are a principal attorney (and not a substitute attorney) and the Granter loses capacity, irrespective of what has happened before, it will then be your responsibility to take up your role.

Continuing or welfare attorney?

There are two types of Power of Attorney:

• A continuing Power of Attorney relates to the property and assets or financial affairs of the Granter.
• A welfare Power of Attorney relates to the personal welfare of the Granter, which gives an attorney the power to make decisions regarding the Granter's medical care and support, as well as where they live.

You might have been appointed as only a welfare or a continuing attorney, or you might have been appointed to both roles.

Sole attorneys, joint attorneys, and substitute attorneys

Regardless of whether you have been appointed as a continuing attorney, welfare attorney, or both, you will have been appointed to that role either alone, alongside someone else (or, indeed, a number of others), or as a substitute for someone else.

If you are appointed to act alone (as the "sole attorney"), you will be solely responsible for making decisions for the Granter in the event that they should lose capacity. Some of those decisions are likely to be very personal in nature, and so it is always advisable to develop as strong an understanding as you possibly can of the Granter's wishes, so that you are well-equipped to make those decisions on their behalf when the time comes.

If you have been appointed to act alongside others (as a "joint attorney"), it is helpful if you know the other attorney(s), or know of each other, and feel confident that you can work together for the benefit of the Granter. You may have been appointed to act either together (so every decision will need to be made jointly) or, more commonly, you may have been appointed to act on a "joint and several" basis, meaning that you can act independently of each other if necessary.

It is essential that you understand the structure of your appointment – if a decision is made in a way that conflicts with the powers granted within the document, it can raise questions around the validity of those decisions.

For joint attorneys, it is worth noting that the surviving attorney(s) can continue to act if one or more of the attorneys (depending on the number initially appointed) dies or is no longer able to act (provided this is specifically catered for within the deed).

With the above in mind, if you are a substitute attorney, you may never be called upon to act, as long as one or more of the principal attorneys takes on and fulfils their role. However, it might be the case that none of the principal attorneys is either willing or able to take on the role at the relevant time (i.e. when the Granter has lost capacity) or they may accept the role and begin acting, but ultimately fail or require to step back.

It is not hard to imagine that, while it may be some time before you are called upon to act, the situation may evolve very quickly. You should therefore be prepared to take up this role at any point.

Registration and "activation" of the Power of Attorney: Knowing when your role begins

Before you can begin acting as either a continuing or welfare attorney, the Power of Attorney must be registered with the OPG. At present, the process for registering powers of attorney can take several months and the OPG regularly provides updates on timings here, however, applications can be expedited if certain criteria are met.

Continuing powers may come into effect immediately once the Power of Attorney has been registered with the OPG and you will be able to assist the Granter with decision-making, notwithstanding the fact that the Granter may still have capacity. Alternatively, it is possible to include a provision within the document which records that the continuing powers cannot come into effect unless the Granter has been deemed incapable by a medical practitioner or the Granter has requested (usually in writing) that their attorney should start acting on their behalf. This is known as the "springing clause".

It is important that you, as attorney, are aware of when your role will come into effect. Regardless of whether or not a springing clause is included, continuing powers will remain in force after the Granter has lost capacity.

Unlike the continuing powers, welfare powers only come into effect once the Granter has become incapable.

Once the Power of Attorney has been registered, the principal document is usually retained by the Granter's solicitor for safekeeping. In order to begin acting as an attorney, you will be required to obtain a certified copy of the Power of Attorney document so that you may provide this to the relevant institutions to prove that you, as attorney, have the power to begin making decisions on behalf of the Granter. The solicitor should be able to assist you with acquiring this at the relevant time.

Duties

Once you begin acting as an attorney and making decisions, you are required to adhere to a number of guiding principles as set out in the Adults with Incapacity (Scotland) Act 2000.

For example, it is of the utmost importance that you should always act for the benefit of the Granter and you should seek to obtain that benefit using the least restrictive means available to you. You should also always consider the past and present wishes and feelings of the Granter before taking any action. It is worth familiarising yourself with these principles before you begin acting as an attorney.

Record keeping

In light of the very rigorous duties to which attorneys must adhere, it is very important that both continuing and welfare attorneys keep written records. For a continuing attorney, this will be information on decisions made in relation to the Granter's assets and income (for example, retaining bank statements). For a welfare attorney, this may be paperwork relating to important decisions surrounding the Granter's medical treatment.

If anything changes, for example if you move address, or an attorney loses capacity, the OPG must be notified.

This article was co-authored by Trainee Sarah Buchan.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.