Emmersons Solicitors - Newcastle and Sunderland
Could you appoint me as an attorney to manage my mother’s affairs?
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Could you appoint me as an attorney to manage my mother’s affairs?

At Emmersons Solicitors we are often approached by people who would like to become an attorney on behalf of their parent or partner. This can be as a result of a medical crisis or because social services have become involved with an elderly person.

However, we always have to advise that it is the person who is in difficulty (the donor) who will be our client. In the first instance we need to establish whether or not they are capable of giving us instructions. At this stage the donor may be in hospital, in a care home or simply unable to make the journey to our office. If we are advised that the problem is early dementia, or mental incapacity because of a recent stroke, then we would seek the opinion of the donor’s doctor regarding their Mental Capacity to instruct us.

I have been to visit clients in care homes who seemed to be incapable of giving me instructions and who had difficulty in understanding why I had visited them. However, upon their GP completing a Mental Capacity Checklist it has transpired that they do have capacity. It may be that they were very tired during my first visit or dehydrated.

As members of Solicitors For The Elderly, Emmersons Solicitors always follow their guidance in determining capacity. This is very important, not only to protect our clients, but also would-be attorneys from accusations of fraud or duress. We keep detailed notes of meetings with clients in case a family member should try to challenge a decision.

We find it is better if all relevant family members discuss matters together before we meet with a client to draw up the documents. In most cases there are one or two family members or close friends who support a client. It is often better if they can be present during at least part of our meeting. This can make a client feel more at ease. As the attorney(s) will be taking on a lot of responsibility it is better if they and the donor can reach decisions together.

Sometimes families have left it too late and it is impossible for their relative to give instructions. If this happens it may be necessary to apply to the Court of Protection to manage the patient’s affairs. This would happen if a house had to be sold or an agreement with a care home had to be signed to pay fees. Without legal standing no one has the right to sign documents agreeing to use a patient’s money. The Court of Protection procedure is far more cumbersome and expensive than the Lasting Power of Attorney route. The Court has the right to interview the person acting (the Deputy). Sometimes the interviews can take up to three hours; the court needs to be satisfied that the deputy is not abusing their position.

To avoid all of the above the best course of action is to think about appointing an attorney(s) now. This will allow you to make decisions about your future whilst you are still able to do so. If any family member has the early signs of dementia, or has had a stroke, you should seek help immediately, contact us for help.

Jacqueline Emmerson
Collaborative Family Lawyer

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