How professional Attorneys and Deputies might prepare for the challenges of the job

 In Elderly/Vulnerable Client

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Being a professional attorney or deputy is a challenge. But a very rewarding one. It’s fair to say that this work is not for the faint-hearted!

This article shares some of my experiences and practical tips in this area to help manage and deal with the unexpected challenges ahead.

1. Plan

The first step is to decide if you want to be an attorney or deputy. It may seem obvious, but you do have a choice and if you feel that you haven’t got the resources to dedicate to this area of work don’t do it.

It is recommended that any professional taking on this role is fully prepared and understands the responsibility that comes with being a professional attorney or deputy before agreeing to accept the position. In fact, the Mental Capacity Act Code of Practice, paragraph 7.59, states that attorneys who are being paid or hold professional qualifications must demonstrate a higher degree of care and skill than lay people.

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Alternatively, you may decide to just act as a professional attorney and not as a professional deputy. Arguably, being a professional Court of Protection deputy carries a higher number of administrative issues and restrictions, which increases the burden of carrying out such work.

2. Acceptance

Accept that some work you do you may not be able to charge for. This is particularly so when acting as a Court of Protection deputy and dealing with the costs assessment process. However, this may be easier to manage if you are a professional attorney, but you need to set parameters with the client. This moves me nicely into point three.

3. Know your clients

When acting in this role, it is essential to get to know your client as a person. What are their likes and dislikes? What makes them tick? What do they want if they lose mental capacity? This role is to give them a voice when the person cannot express their needs and wishes themselves.

Some important points you may wish to consider are: –

  1. Set out how you will help your clients and how they want you to help them.
  2. Discuss your charging structure and how fees will be incurred, what is included and what isn’t. Ensure you are clear about what you are charging the client for. For example, will you be charging for travel time, visits, carrying out domestic duties, and keeping in touch with the client before you are called upon to act?
  3. Establish whether the client will need any additional support.
  4. Discuss who is in their existing support network and whom to contact to help you manage the client’s affairs.
  5. Discuss the client’s wishes, feelings, beliefs, and values. Think about any religious views and discuss any investment issues, such as ethical investments. You may also want to discuss any charities the client supports or may wish to support in the future.
  6. Agree with the client how often you will keep in touch and whether there will be a charge for that.
  7. Document all your discussions with the client. Use a letter of wishes as this can be updated in the future. Don’t be tempted to note updates in an attendance note on the client’s file as this may not be picked up when you are required to act for the client. Even if you are not proposing to be appointed as a health and welfare attorney for the client, you may wish to note any health and welfare issues in the letter of wishes. There is a crossover with health and welfare matters even if you are just an attorney or deputy for financial affairs.

It is more difficult to establish the above if you are already appointed or acting as a professional deputy. However, do whatever is possible. For example, speak with the family and your client’s support network to see what they can do and what they know about the client’s past, present, and future wishes and feelings. Speak with carers, care home managers, and any case workers or social workers who are looking after your client.

Be prepared to have conversations with your client before they lose mental capacity. This will allow your client to make informed choices about both the appointment itself and the kind of decisions they wish you to make on their behalf, and more importantly when those decisions can be made. Set boundaries and be clear about whether the client wishes you to make decisions for them when they have mental capacity or only when they have lost mental capacity (and how loss of capacity should be established).

The view of the Office of the Public Guardian is that unless a Lasting Powers of Attorney intends that the duties of an attorney are deferred until a future event (for example, lack of mental capacity), then those duties are binding on the attorney as soon as the Lasting Power of Attorney is registered. Therefore, getting to know your clients and keeping in touch with them at regular intervals is important.

4. Understand dementia and mental capacity

One of the biggest game changes for me when starting my journey in this area of work was starting to learn about dementia. I attended a compelling dementia friends session and I’m sure many of you have attended similar sessions.

I continued with this learning whenever I could. But the only real way to understand more is to experience it. Visit your clients and get to know them. Understand their challenges and what you can do to help them. Be mindful of the language you use, whether you are talking to your client, colleagues, or other professionals.

I believe every decision you make as an attorney or deputy, on behalf of the person you are helping, is underpinned by that person’s mental capacity. If they have an illness, to what extent is the illness impacting their ability to understand decisions they need to make?

More important is the understanding that a person is assumed to have mental capacity to make a decision unless it can be shown otherwise. It is always helpful to keep in mind that mental capacity is assessed on a decision and time-specific basis.

5. The Certificate Provider

When a professional attorney is appointed, someone independent of the attorney’s organisation should be approached to act as a certificate provider. This is the view of the Office of the Public Guardian. Be sure to ask somebody appropriate to act as a certificate provider. This might be another professional unconnected with your firm. The advantage is that should the mental capacity of your client to make a Lasting Power of Attorney be questioned then you have a certificate provider with the correct amount of skill to answer any concerns.

6. Professional fees

Do ensure that the Lasting Power of Attorney specifically states your fee arrangements. You have no power to charge for your service if the LPA is silent on fees. I have encountered LPAs that are silent in relation to fees. The last thing you want to face is an application to the Court of Protection to seek approval of your charges.

7. Seek outside help

I suspect we have all experienced issues with banks and building societies. Sometimes it is easier to look for alternative options. The organisation Money Carer is fantastic. They help the vulnerable, their carers, attorneys, and deputies with money management solutions, such as bank accounts, carers’ shopping cards, and much more. They also offer a welfare benefits check.

In addition to financial arrangements, if you need assistance with care assessments, sourcing a care home, or help with other health and welfare issues there are lots of independent social workers, occupational therapists, and other organisations who can help. One of particular interest is Nellie Supports. They offer a support package for attorneys and deputies to ensure you can help your client and comply with your duties as their attorney or deputy.

8 .Resources

I would recommend reading and becoming familiar with the professional deputy standards (which can equally apply to a professional attorney) and the PN1 Practice Note – Agreeing to act as a professional attorney – a good practice guide. Both are produced by the Office of the Public Guardian.

In addition, the Mental Capacity Act Code of Practice is an extremely useful source of information. It is your manual and guide. Read, digest, and keep it at your bedside!

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