The choice of attorney must always be the donor’s, however unusual or inappropriate this may seem at the time. It is still necessary for solicitors to advise the donor on their choice of attorney, advising on the role and duties the attorney will assume and the authority granted to them by the donor. There is no one set of criteria to use in choosing an attorney, but ideally an attorney will have the following attributes:
The role of attorney for someone who has lost mental capacity has changed, since personal welfare decisions may now be taken, not just property and ﬁnancial ones. A personal welfare attorney may be assisted by knowledge of the donor’s treatment preferences; end of life wishes; personality and general likes and dislikes; what they like to do in the evenings; who they visit; food and shopping preferences; tastes in music or cinema; reading choices; and so forth. The attorney who is not able to show that they know the donor well enough to answer these and similar questions might not necessarily be a suitable choice for a personal welfare attorney.
When choosing an attorney the donor should consider Mental Capacity Act Code of Practice 7.8, it says - A donor should think carefully before choosing someone to be their attorney. An attorney should be someone who is trustworthy, competent and reliable. They should have the skills and ability to carry out the necessary tasks.
There should be no presumption that a personal welfare attorney will be suitable to act as a ﬁnancial attorney and vice versa. The choice must always rest with the and the attorneys should consider their suitability for the proposed role.
The overriding principle of acting in the best interests of the donor dictates that attorneys must endeavour to do so at all times and with reasonable skill. There is nothing wrong with an attorney seeking assistance, since this is in line with acting in the best interests of the donor. Unless authorised by the LPA, they may not delegate their functions to a third party. In failing to see that assistance may be required, the attorney may be considered neglectful and possibly subject to MCA 2005, s.44.
The following are relevant to the suitability of an attorney:
There is nothing to prevent the appointment of an attorney who has a disability, a mental health condition or learning difﬁculties, provided they have reached 18 years and have mental capacity.
The choice of who to appoint is the donor’s. The person chosen may be familiar with the donor’s preferences, their likes and dislikes and overall lifestyle, or they may have suitable professional skills and abilities to help them make decisions for the donor. Ultimately, it is the donor’s decision as to whom they will grant authority to make personal and ﬁnancial decisions for them.