The role of attorney involves a great deal of power and responsibility so it’s important that you trust the person or people you choose.
Your attorney could be a family member, friend, your spouse, partner or civil partner. Alternatively, you could choose a professional, such as a solicitor. Think about who you believe would be able to carry out the role and make decisions in your best interests. Give the person you ask time to think about the role.
It can be a good idea to appoint more than one attorney, but you must decide whether they are to act:
You can state that attorneys act jointly in some matters and jointly and severally in others.
Each attorney will need to attend a Cumberland branch with the relevant documents and proof of their ID and address before they are able to use the account.
Attorneys must be over 18 (16 in Scotland) and shouldn’t be paid care workers unless there are exceptional circumstances, for example, if they are the only close relative of the donor.
Your attorney can claim back any expenses they incur while acting on your behalf – for example, postage, travel or photocopying costs. 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.
In England and Wales mental incapacity is governed by the Mental Capacity Act 2005. Mental incapacity is defined in the Act to arise ‘because of an impairment of, or a disturbance in the functioning of, the mind or brain’. The assessment of a person’s capacity must be based on their ability to make a specific decision at the time it needs to be made and not their ability to make decisions in general.
The Act also provides that the impairment or disturbance does not have to be permanent. A person can lack capacity to make the decision at the time it needs to be made even if the loss of capacity is partial, temporary or their capacity changes over time.
Mental capacity means being able to understand a specific decision, retain information for long enough to make it, weigh up different choices and communicate the decision in any way possible.
The starting assumption must always be that the person has the capacity to make a decision, unless it can be established that they lack capacity. A person may also lack capacity to make decisions about one issue but not others.
Mental capacity can change over time and someone may not be able to make a decision at one time, and then be able to make the same decision at another time.
Someone with mental capacity is able to communicate decisions through speech, signs, gestures or in other ways. Taking time to understand or communicate may be mistaken for a lack of mental capacity, but having dementia, for example, doesn’t necessarily mean someone can’t make any decisions themselves.
If someone is having difficulty communicating what sort of decision they want to make, an attempt should always be made to overcome that difficulty and help the person decide for themselves.
Assessment of mental capacity is a medical function - our staff, no matter how well they know you as a customer or your family and friends, aren’t medical professionals and so can’t advise on someone’s mental capacity.