Making an 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; after all these are the people who will be responsible for making decisions on the donor’s behalf and looking after their best interests. Ultimately the decision on who to appoint as an attorney is the donor’s 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 someone who is trustworthy, competent and reliable. They should have the skills and ability to carry out the necessary tasks.”
But the drafter must still make sure they can guide the donor through the process.
1. Capacity
One of the first things to consider are the attorney’s own age and capacity. An attorney must be over 18 at the time the LPA is created and must themselves 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 for any reason.
When taking instructions for a Property & Financial Affairs LPA the donor should be made aware that a person who cannot act as an attorney. If they become bankrupt at any point their appointment as an attorney will be revoked. This can easily leave an LPA in jeopardy. The donor would be well advised to think about their proposed attorney’s own 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? If the donor of a Health & Welfare LPA is giving authority to refuse life sustaining treatment they need to be sure that their chosen attorney would be capable of making this difficult decision.
2. Complexity
This is more relevant to P&F LPAs. Is the donor’s estate complex? Do they have a myriad of investments or a property portfolio that needs to be managed? Maybe they have business interests that need to be dealt with separately.
The donor must consider whether they need to appoint someone with special skills to manage their assets. This may be a professional like an accountant to manage their investments, or even an individual that they know has the appropriate skills and experience. When considering professional attorneys make sure to also consider their fees.
This is most true of ‘Business LPAs’ where it is important to the business that the attorney has knowledge of the business and preferably experience in it. In some cases, the chosen attorney may also need 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?
It’s possible to appoint a sole attorney. The forms have space for four attorneys and two replacements, but there is no upper limit on how many attorneys can actually be appointed. That said, it’s never usually wise to appoint more than four attorneys and the Office of the Public Guardian (OPG) don’t encourage this.
Regard should be had to whether replacement attorneys are needed. Who would the donor want to make decisions for them if any of their first choice of attorneys were unable to? 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 appointing multiple attorneys, 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 especially need to be aware of the effect on their LPA should any of their attorneys become unable to act.
5. Jointly owned property
It is common for donors to appoint their spouse as their sole attorney. You should note that this can cause an issue if the donor and their spouse own property together. All jointly owned land in England & Wales is held on a trust of land, usually with the joint owners holding the property on trust for themselves. When transferring the land, a minimum of two trustees are required to give good receipt of capital monies, overreaching any underlying beneficial interests.
If one owner has lost capacity and their sole attorney is also the other owner the attorney cannot give receipt in their capacity as both owner and attorney; two separate signatures are required. In such a case the attorney would have to take extra steps to appoint a co-trustee to act with them under s36(6)(b) of the Trustee Act 1925.
This has covered only what I feel are the main points to think about when appointing attorneys. There are also factors that have not been touched upon that will be very personal to each donor, for example would it be practical to appoint their relative who lives abroad? Can they afford a professional attorney’s fees? We also mustn’t overlook the proposed attorneys’ relationship with each other. It’s important that they get along well enough to make decisions together. This is even the case when appointing different attorneys for both types of LPA as there will inevitably be some overlap for certain decisions.
