Making an LPA is an important decision. Therefore, consideration should be given to how many attorneys are needed, who will act, and how they will make decisions; after all, these are the people who will be responsible for making decisions on the donor’s behalf and looking after their best interests. It is for the donor to decide who they would like to appoint as their attorneys, and here are some pointers for them to consider when making their decision.
1. Capacity
One of the first things to consider is the attorneys’ age and capacity. An attorney must be over 18 at the time the LPA is created and must have the capacity to act. For obvious reasons, 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 made 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 easily 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 own 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?
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 regulation 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 will need to 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 with one another and make decisions together 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? Whilst 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 be able to 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 get in touch with the attorneys abroad. Also, there would likely be some difficulties if the attorney was required in person for anything.
