Appointing LPA Attorneys

When choosing attorneys, it's important to avoid feeling pressured to decide to avoid exclusion or offence. Attorneys make significant decisions, so selecting the right people for the role is crucial. You (The donor) also have the authority to decide who should act as your attorney and set out how they can act. 

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?

Choosing an attorney

1. Capacity

One of the first things to consider is the attorneys’ age and capacity. An attorney must be over 18 when the LPA is created and have the capacity to act. It is unwise for the donor to appoint someone much older than themselves or whose capacity is questionable. When taking instructions for a Property & Financial Affairs LPA, the donor should also be aware that a person cannot act as an attorney if they are bankrupt. If they are made bankrupt after they are appointed, their appointment as an attorney will be revoked. This can put an LPA in jeopardy. The donor should, therefore, think carefully about their proposed attorney’s relationship with finances before giving them authority to manage their financial affairs. This does not affect a Health & Welfare LPA. On the point of capacity, would the attorney be able to make the decisions they may be asked to make? Suppose the donor of a Health & Welfare LPA is giving their authority to refuse life-sustaining treatment, can they be sure that their chosen attorney would be capable of making this difficult decision? If they would struggle a supporting Letter Of Wishes is strongly recommended.

2. Complexity

This is more relevant to Property and Financial Affairs LPAs. Is the donor’s estate complex? Do they have many investments or a property portfolio that needs to be managed? Maybe they have business interests. The donor should consider whether they need to appoint someone with specialist skills to manage their assets. This may be a professional like an accountant to manage their investments, or even an individual they know that has the appropriate skills and experience. When considering professional attorneys, make sure to consider their fees as well. This is most true of ‘Business LPAs’ where it is essential that the attorney has knowledge of the business and preferably experience in it. In some cases, the chosen attorney may also need to have certain qualifications and be subject to the same regulations as the donor.  Take for example the Managing Partner of a solicitor’s firm; they would only be able to appoint another suitably qualified solicitor as their attorney to make decisions regarding the firm.

3. How many attorneys should be appointed?

It’s possible to appoint a sole attorney, and the LPA forms have space for four attorneys and two replacements. There is no upper limit on how many attorneys can be appointed; however, it’s never usually wise to appoint more than four attorneys, and the Office of the Public Guardian (OPG) doesn’t encourage this. Regard should be given to whether replacement attorneys are needed. If any of their first-choice attorneys were unable to make decisions for them, who would the donor want to make them? If the donor is appointing a sole attorney, they should absolutely be encouraged to consider a replacement. If their sole attorney becomes unable to act, then the whole LPA will fail without a replacement.

4. How should they act?

If multiple attorneys are appointed, the donor must decide how they will act. There are three options. 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. The donor should be made aware of the advantages and pitfalls of each type of appointment. If they are considering appointing attorneys to act jointly, they need to be mindful of the effect on their LPA should any of their attorneys become unable to act.

5. Do the attorneys get on with one another?

This can sometimes be overlooked. Regardless of how the attorneys are appointed, they should be able to work together and make decisions that are in the donor’s best interests. This is even the case when appointing different attorneys for both types of LPA, as there will inevitably be some overlap for certain decisions.

6. Where are the attorneys based?

Is it practical to appoint an attorney who lives abroad? While there are no restrictions on attorneys being appointed who live abroad, where they are based should be considered when choosing the attorneys. If the attorney lives abroad, how will they logistically manage the donor’s affairs if a decision is required? Account should also be taken of the time difference if the other attorneys ever needed to contact the attorneys abroad. Also, there would likely be some difficulties if the attorney was required in person.

Guidance

Every week I help donors (Clients) make these important decisions. If they are still unsure after considering the above, I ask these Questions.

Have you already appointed executors and trustees for your Will? Though a different document, consider appointing them as an attorney or replacement attorney.

If you had to leave the country tomorrow morning and could not communicate with anyone in the UK for six months, who would you want to look after your finances? Who instantly came to mind first? ..........And Second? ...................And Third?

If a doctor or social worker made decisions about you that you may not like, who would you want "in your corner" representing your interests?

Look in front of you. What do you see, a cup, a pen, a notepad? Now, imagine you run a small business making and selling these. If you were in the hospital for six months who would you want to run that business for you? 

I understand this may seem abstract, but it can be helpful for many. Attorneys must maintain records, make informed decisions, communicate effectively, be strong advocates for the donor's best interests, and be compassionate enough to show empathy.

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 cannot 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 in accordance with any specific instructions in the LPA. 

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