05 Jun
05Jun

When creating Lasting Powers of Attorney, the people you choose to act on your behalf are called your ‘Attorneys’. You must select at least one attorney, and there is no upper limit. However, too many attorneys could cause issues, especially if appointed jointly. It is highly recommended to name at least one replacement attorney if your first attorney can no longer act for you, making your LPA unusable. When selecting attorneys, you should consider the following questions:

  • How many attorneys do you want to appoint?
  • Will your attorneys be able to work together without conflict?
  • Do you trust them to act in your best interests?
  • How well do you know each other? And how well do they understand you?
  • How well do they look after their own money?

When choosing attorneys, it's important to avoid feeling pressured to make a decision to avoid exclusion or offence. Attorneys make significant decisions, so selecting the right people for the role is crucial. You also have the authority to decide who should act as your attorney and set out how they can act. Below, we've outlined the advantages and disadvantages of each option.

Jointly and Severally

This option is often the most popular as it provides the most flexibility for the attorneys. Attorneys can act independently of each other, so they do not all have to agree on all decisions. This is beneficial in case of a dispute between them or if attorneys reside in different countries. However, this can also be a negative point as an attorney can act alone, resulting in less oversight from the other attorneys. If any attorneys pass away or become unable to act, the other attorneys can still use the LPA as usual.

Jointly

This option offers more protection to Donors as all attorneys must agree on all decisions, and they cannot act independently, therefore minimising the issue of foul play by the attorneys. However, this can also be a negative as this option has less flexibility. All attorneys have to agree on every decision, no matter how big or small, and matters can go to court if the attorneys cannot agree. Another pitfall of attorneys acting jointly is that if one attorney dies or can no longer act, all attorneys can no longer act as they are jointly appointed. Unless replacement attorneys have been named in the form, the LPA will cease at that point.

Jointly for some decisions, Severally for others

This option can give the Donor the opportunity to choose what decisions must be agreed upon unanimously. This generally applies to the more important decisions, such as selling the Donor’s house or placing the Donor in care. However, if one of the attorneys dies or can no longer act, the LPA will stop working on the decisions that need to be made jointly unless at least one replacement attorney has been appointed. 

Property and Finance (LPA) attorney, responsibilities include:

  1. Managing Finances: You’ll handle financial matters on behalf of the donor (the person who granted the LPA). This involves managing bank accounts, paying bills, and making financial decisions.
  2. Property Transactions: You can sell or manage the donor’s property, subject to any restrictions in the LPA. This includes selling property if it’s in the donor’s best interests.
  3. Investments: You may invest the donor’s money wisely, considering their best interests and risk tolerance.
  4. Tax Affairs: You’ll deal with tax-related matters, such as filing returns and paying taxes.
  5. Reporting: To ensure transparency, regularly provide accounts and reports to the Office of the Public Guardian (OPG).

Health and Welfare(LPA) attorney, main duties include:

  1. Medical Decisions: You make (or assist the donor in making) decisions related to daily routines (such as washing, dressing, and eating) and medical care. These decisions are made when the donor lacks mental capacity.
  2. Informing Relevant Parties: You must inform people involved in the donor’s care (such as friends, family, doctors, healthcare staff, care workers, and social workers) when you start making decisions on their behalf.
  3. Using Donor’s Funds: You may spend the donor’s money on things that maintain or improve their quality of life. This could include new clothes, home decoration, or additional support for outings or holidays.
  4. Refusing or Consenting to Treatment: Check the LPA for instructions regarding refusing or consenting to medical treatment. You’ll need to show the LPA to care staff, sign medical consent forms, and make decisions in the donor’s best interests. Note that you cannot always make decisions if the donor has a living will (advance decision) or has been sectioned.

Remember, the attorney's actions should always be in the donor’s best interests and accordance with any specific instructions in the LPA. 

Written with thanks to Natalie Turner, SWW Technical advice team.

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