Being a Deputy or an Attorney during the Coronavirus outbreak
Being an Attorney or a Deputy on behalf of a person who lacks mental capacity to make decisions in relation to their property and finances and/or health and welfare is never an easy task. However, during the COVID-19 pandemic, there are complications, which can vary from being able to carrying out your duties to being appointed in the first place.
In some cases, the problems can be solved with forward research and planning. Nevertheless, it is still vital to understand the issues that you may face.
What is an Attorney?
Having Power of Attorney means that a loved one has, at some point, appointed you to take vital decisions on their behalf if they are unable to make them themselves. This can be a temporary measure. For example, if the person is going to be out of touch for a while and needs decisions made about their financial affairs, they may appoint an Attorney for the duration.
The more common arrangement, however, is a Lasting Power of Attorney (LPA), which remains in force indefinitely. It can be set up at any time — many people do so at the same time as making their Will, although they are entirely separate processes.
An LPA allows for a range of decisions to be taken if the person loses mental capacity, most commonly through developing Alzheimer’s or another form of dementia. Other common causes include a severe stroke, an accident or illness leading to brain damage, or developing a serious mental illness. An Attorney can, in some situations, also act if the person still has capacity but maybe has a physical impairment meaning that they need assistance such as sight problems or difficulty in signing documents.
One or more Attorneys may be appointed as well as Replacement Attorneys – if required. There are two main types of LPA;
- A Finance and Property Attorney will make decisions about bank accounts, property and investments, including whether to sell property.
- A Health and Welfare Attorney will make decisions about medical treatments, care and living arrangements.
If an LPA is in place, it can be activated immediately if it has been registered with the Office of the Public Guardian. This means that the person’s affairs can continue without interruption. However, if no LPA has been set up, the process is more complicated.
What Is A Deputy?
If there is no LPA in place when the person loses mental capacity (Protected Party), this cannot be set up retrospectively, since the Protected Party now lacks the capacity to make that decision. Where there is no LPA in place, the next step is to apply to the Court of Protection to be appointed as a Deputy.
A Deputy has similar powers to an Attorney and are appointed in relation to a Protected Party’s property and financial affairs and/or health and welfare. However, Deputies are under much closer supervision by the Office of the Public Guardian and the Court of Protection. There is also no guarantee that the Court will appoint someone the Protected Party would have chosen.
Problems carrying out your duties during the pandemic
As an Attorney or Deputy, you may have regular tasks you need to carry out for the person you are acting for. For example, you may do the person’s shopping or go to the bank for them. You may also need to visit the person periodically.
If you are shielding or self-isolating, you will be unable to carry out any of these tasks. However, there are alternatives available. Someone else who is not at risk could go to the shops or deposit a cheque at the bank, for example. Your local supermarket may have a volunteer card scheme which allows someone to buy essentials on another person’s behalf.
You may also be unable to visit the person face-to-face, but you may need to see them to ascertain their thoughts and views on a particular decision. As an alternative, you could have a phone or video call, for instance, or ask someone to speak to them on your behalf, if you trust them. If none of these options are possible, you may be able to assess their likely views from past-experience.
It is important to note, however, that even though you are entitled to get someone else to assist you, you are not permitted to transfer the decision-making process to anyone else.
What can you do if you are worried about the person’s health?
One of your responsibilities as an Attorney or a Deputy may be to advocate for the person’s health and medical needs, and this is likely to be more critical during the pandemic than at normal times.
It is important to remember, however, that you are not a medical decision-maker. Decisions about whether to use a particular resource for the person you are acting for will be taken by medical professionals, based on a wide range of information.
Whether the issue involves medical equipment, a professional’s time or care arrangements, your task is to decide between the options presented to you, in the same way that you would on your own behalf. At all times, this decision should be made in the person’s best interests, taking into account their own wishes and those of the people around them.
Problems with being appointed a Deputy
Like everything else in the current situation, the Courts have been hit by major delays, and this includes the Court of Protection. While being appointed a Deputy is never a fast process, the COVID pandemic is causing considerable delays. A straightforward application can still take months to be approved and during this time, no one has authority to manage the finances or make health decisions on behalf of the Protected Party, not even family.
A Deputyship can also be costly as it incurs annual fees to be paid.
This highlights the importance of setting up an LPA while you are still able to do so.
If you are an Attorney or a Deputy for a loved one, your duties remain the same as at other times, but there may be differences in how you carry them out. For more information, please get in touch with our LPA or Court of Protection specialist teams today.