poa-2020
How does COVID19 affect your role as an attorney or deputy?
  • 28th Apr 2020
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If you are an attorney (appointed by an individual by an Enduring or Lasting Power of Attorney) or a deputy (appointed by the Court of Protection for an individual who lacks capacity) you may be wondering how the pandemic and government guidelines affect your role and whether you can temporarily give up or delegate your role.

 

The Office of the Public Guardian (OPG) (the government body which supervises attorneys and deputies) has advised that attorneys and deputies cannot temporarily give up or delegate their role and the responsibilities associated with being an attorney or deputy are unaffected:

 

“During the coronavirus outbreak, your role and responsibilities as a deputy or attorney remain the same', the OPG’s guidance states. 'If you are self-isolating or shielding, you must continue to make decisions for [the protected person P]. You cannot ask anyone else to make those decisions for you.” [1]

 

You must therefore continue your role whilst also following government guidance on social distancing, self-isolation and shielding.  This means you may have to make some adaptations to the way you usually do things.  

 

To give an example, if you are faced with making a decision then you should follow the usual process under the Mental Capacity Act.  As part of that you may need or want to talk to the person first, something that you might usually do face to face during a visit.  Think about how urgent the decision is and whether it could be delayed until the current situation passes.  Unless it is particularly urgent, it is okay to prioritise getting food and other essential supplies and generally keeping yourself and others safe and well. 

 

If it is a decision that cannot be delayed, you could use the telephone or a video call to discuss with the person.  Many older people are embracing technology during this time even if it’s not something they have used much before (I saw a wonderful tweet that went viral from a 94 year old who was trying Twitter for the first time)![2]  If using the telephone and/or technology is really not suitable then you might consider having a care worker or someone else pass on the information and then revert to you. 

 

It is important that you make the decision and you do not ask someone else to make the decision for you as you are not allowed to delegate decision making.  However, you can ask someone else to carry out the decision for you if you’re not able to action it yourself.

 

You cannot temporarily step down as an attorney or deputy.  If you feel you are unable to carry out the role, you can give up your role permanently.  This may leave the person without the support so it is important to think carefully about this and take advice before doing so. 

 

If you have queries about any aspect of acting as a deputy or attorney, please do not hesitate to get in touch with myself or one of my colleagues in the Tax and Estate Planning department at Whitehead Monckton.  We offer a fixed fee attorney advice service and can discuss with you over the telephone or by video call.

 

On a related note, the OPG has also issued guidance for people who have not yet granted a Lasting Power of Attorney but who may need someone to look after their affairs during the outbreak.  We are still able to assist with putting Lasting Powers of Attorney in place, and may also suggest a general power of attorney to authorise someone to help whilst waiting for the Lasting Power of Attorney to be registered – for more on this see my colleague Richard Hearne’s article here.


[1] https://www.gov.uk/guidance/being-a-deputy-or-attorney-during-the-coronavirus-outbreak

[2] Bryony Burrell posted on Twitter on 11 April 2020 “at 94 years old, I never imagined that I’d ever be new to anything again, but I’m new to Twitter!  This is my first Tweetle.  This will show my grandson that I can get down with the young ones.  The only problem I have, is getting back up again!”