Making a Lasting Power of Attorney (LPA) is an important decision. Great consideration should be given to how many attorneys are needed, who is going to act, and how they will make decisions. These are the people who will be responsible for making decisions on your behalf and looking after your best interests. Ultimately the decision on who to appoint as an attorney is your choice alone, and the Mental Capacity Act 2005 Code of Practice makes this clear:
“7.8 A donor should think carefully before choosing someone to be their attorney. An attorney should be trustworthy, competent, and reliable. They should have the skills and ability to carry out the necessary tasks.”
The following aspects of a potential attorney are important:
Age & Mental Capacity
Two of the first things to consider are the attorney’s own age and their mental capacity. An attorney must be over the age of 18 at the time the LPA is created and they themselves must have the mental capacity to act. For obvious reasons it is unwise to appoint someone much older than you, or whose mental capacity is questionable for any reason.
When considering a Property & Financial Affairs LPA, you should also be aware that a bankrupt person may NOT act as an attorney. As a result, this can potentially jeopardize your LPA in the future, so you would be well advised to think about your proposed attorney’s own relationship with finances before giving them authority to manage your own financial affairs. This does not affect a Health & Welfare LPA.
On the point of mental capacity, would a potential attorney be mentally capable of making the decisions which they may be asked to make on your behalf?
For a Health & Welfare LPA, would your chosen attorney be capable of making decisions on your behalf regarding life sustaining treatment?
Complexity
This is more relevant to Property & Financial LPAs. Is your estate complex?
Do you have complex investments or a property portfolio which needs to be managed? You may have business interests which need to be dealt with separately.
You must consider whether you need to appoint someone with special skills to manage your assets. This may be a professional such as an accountant or a solicitor to manage your investments, or even an individual whom you know has the appropriate skills and experience. When considering professional attorneys, then also ensure that you consider their ongoing fees to act.
This is most true of “Business LPAs” where it is important to the business that the attorney has knowledge of that business and preferably experience within it. In some cases, the chosen attorney may also need to have certain qualifications and be subject to the same regulation as you. For example, the Managing Partner of a solicitor firm would only be able to appoint another suitably qualified solicitor as their attorney to act on their behalf.
How many?
It is possible to appoint one sole attorney. The official LPA documents have space for up to four attorneys and two replacement attorneys, however there is no upper limit on how many attorneys can be appointed. That said, it is usually unwise to appoint more than four attorneys and the government department which registers LPA documents (The Office of the Public Guardian (OPG)) supports this.
It is also important to consider to whether replacement attorneys are necessary. Who would you want to make decisions for you if any your first choice of attorney(s) were ever unable to act for any reason?
If you are appointing a solitary attorney, then you should also appoint a replacement attorney in case your solitary selected attorney becomes unable to act. Otherwise, the entire registered LPA will fail.
How should they act?
If appointing multiple attorneys, you will need to decide how they will act. The three options are Jointly, Jointly and Severally, and Jointly for some decisions but Jointly and Severally for all others (the hybrid power).
This is an important decision and needs to be well thought out. You should be aware of the advantages and pitfalls of each type of appointment. If you are considering appointing attorneys to act jointly, then you need to be especially aware of the effect on your LPA should any of your attorneys become unable to act.
Jointly owned property
It is common to appoint a spouse as your solitary attorney. You should note that this can cause an issue if you and your spouse own property together and transactions in relation to that land are required after you have lost your mental capacity.
There are other factors such as the geographical location of your proposed attorney(s) which should also be considered. For further guidance without fear of consultation fees or obligation, please visit our Power-of-Attorney page.
TRF Wills (TRF) was created by Michael Cotterill in 2005. He is a member of the Society of Will Writers and registered with the Information Commissioner’s Office.