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Choosing an attorney

Some people worry about whether they can be sure their attorney will act in their best interests but there are certain principles they must follow. 


Who should I choose as my attorney?

The role of an attorney involves a great deal of power and responsibility so it’s important you trust the person or people you choose.

It’s a good idea to give the person you ask time to think about the role, to make sure they feel comfortable doing it.

Your attorney could be a family member, a friend, your spouse, partner or civil partner. Alternatively they could be a professional, such as a solicitor.


Can I choose more than one attorney?

It can be a good idea to appoint more than one attorney – known as joint attorneys – but you must decide if they are to make decisions:

  • jointly – meaning they work together on all matters
  • jointly and severally – where they may act together or separately, as they choose.

You may want to specify that attorneys must act jointly for specific decisions, such as selling a house, but they can act jointly and severally for all other decisions.

You might also consider appointing replacement attorneys, in case something happens to one of your attorneys and they are unable to act on your behalf anymore.


Do I need to pay an attorney?

Your attorney can claim back any expenses they incur as part of the role – such as postage, travel costs or photocopying. They can claim these from your money, keeping an account of any expenses and relevant receipts.

However, they can’t claim for time spent carrying out their duties unless they are a professional attorney, such as a solicitor, who will charge fees.


How should my attorney act?

Your attorney must follow certain principles to ensure you still make your own decisions as much as possible, and that they make the right decisions on your behalf if you can’t.

Your attorney should:

  • Assume that you have mental capacity. The attorney must first assume that you’re able to make the decision yourself before they make a decision for you.
  • Help you make a decision. You must be given as much practical help as possible to make your own decision before anyone decides you’re unable to. For example, if you’re better able to understand things at a particular time of day, you should be helped to make a decision then. Or you may be better able to understand or communicate using pictures or sign language.
  • Allow you to make 'unwise decisions'. You shouldn’t be treated as unable to make a decision just because you make decisions that others might not agree with.
  • Choose the least restrictive decision. Anyone making a decision for you should consider all the alternatives and choose the one that is the least restrictive of your rights and freedoms.
  • Act in your best interests. Any decisions made or action taken on your behalf must be made in your best interests.

How can my attorney be sure they're acting in my best interests?

When making any decision, your attorney must:

  • do everything possible to encourage you to participate
  • consider your past and present feelings, especially any expression of your wishes you made, such as an advance statement
  • consider any of your beliefs and values that could influence the decision
  • talk to other people, such as your family, carers or friends, who know about your feelings, beliefs and values
  • always remember your right to privacy and that it might not be appropriate to share information about you with everyone
  • know about any exceptions, such as if you have made an advance decision to refuse medical treatment.

What can I do if my attorney is not acting in my best interests?

If you are a friend or relative of the donor and have concerns over the way an attorney or deputy is acting, or are worried that they are not making decisions in the best interests of the donor, you should raise this with the Office of the Public Guardian.

The Office of the Public Guardian is responsible for registering and monitoring attorneys and deputies and can investigate allegations of mistreatment or fraud. It can report concerns, to another agency, such as the police or social services, if appropriate.

 

Last updated: Aug 28 2018

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