Wills + Probate: Lasting Powers of Attorney (LPA) – How to choose Attorneys

Key Points to consider when choosing your Attorneys

Lasting Power of Attorneys (LPAs) are extremely powerful documents that grant the appointed person/s (the Attorneys) the legal authority to act on an individual’s (the Donor’s) behalf.
There are two types of LPA:

•  LPA for Property and Financial Affairs – grants your Attorneys authority to act in connection with your financial matters, such as management of bank accounts, investments and sale of property. It can be used at your say so (i.e. whilst you have capacity to make financial/property related decisions). It is also valid in the event you no longer have capacity to make decisions regarding your property and finance.
•  LPA for Health and Welfare – grants the appointed Attorneys authority to deal with your day-to-day health and care decisions on your behalf, such as where you might live or medical care and treatment. Note, unlike the Property and Financial LPA, a Health and Welfare LPA is only valid if you lose the capacity to make decisions about your health and welfare.

It is important to give careful consideration before appointing an Attorney to act on your behalf. Below are some of the Key Points to consider when choosing your Attorneys.

Who can Act as an Attorney and how many can I appoint?

Essentially, anyone over the age of 18 can act as an Attorney, provided they have the mental capacity, and for property and financial LPAs, are not subject to bankruptcy proceedings. Broadly speaking, there is no set limit to the number of Attorneys you can appoint. However, from a practical perspective, between one and four is the most common option. This helps balance the responsibility and avoid potential issues, such as decision-making logistic

You can also name Replacement Attorneys, to step in if one or all your “primary Attorneys” is no longer willing or able to act. This is of particular importance if you have named one “primary Attorney”, as by naming a Replacement Attorney, you have a contingency plan in place

How will my Attorneys act, “jointly or “jointly and severally”?

Attorneys can be appointed on what is known a “joint” or “joint and several” basis, dependent upon the terms of the LPA. Jointly means all Attorneys must act together in the decision. Jointly and severally means each Attorney can make decisions independently. A joint and several appointment is generally the most practical, say if one Attorney is on holiday or unwell, the other Attorneys can still act, e.g. signing documents.

Remember: an Attorney must Act In YOUR Best Interests!

An Attorney is under a legal responsibility to prioritise your (the Donor’s) wishes and values when making decisions. At all times an Attorney must act in the best interest of the Donor and must not be unduly influenced by anyone else’s needs, beliefs and values, etc.

LPAs are governed by the Mental Capacity Act 2005 and related legislation. The role and responsibilities of an Attorney is further defined in the Mental Capacity Act Code of Practice.

Trust, Willingness & Skill Set.

Your Attorneys should be people you trust complicity, as if required to act, they will have control over your personal and financial affairs.

Check with your proposed Attorneys to ensure they are willing to take on the appointment. Your Attorneys should fully understand their roles and responsibilities, such as making decisions in accordance with the scope of their authority, keeping records of their decisions and liaising with relevant organisations.

Should I appoint a professional as an Attorney?

If you have any concerns about conflict, the responsibility placed on your Attorneys, or if your financial affairs are more complex, etc, you might want to consider appointing a professional Attorney, such as a solicitor or accountant. A professional Attorney can offer an impartial perspective, making decisions based solely on your best interests, without any personal or emotional involvement. Whilst hiring a professional attorney may incur a cost, their specialised knowledge and experience in managing legal and financial matters can help ensure your affairs are handled competently and in accordance with the Law and relevant regulations.

AT THATCHER + HALLAM WE ARE HERE TO HELP!

We pride ourselves on ensuring our LPA Service is tailored to you. Meeting with you to guide you through the decisions process, in order to prepare and complete your LPA to meet your specific wishes and circumstances.

Did you know that as well as helping clients with the preparation of Lasting Powers of Attorney we also assist clients and their Attorneys in managing their affairs once the LPA has been finalised. Our friendly and approachable team provides a bespoke service to meet the specific needs and situation of each client and their Attorneys.

If you wish to find out more, contact us through our website, telephone us on 01761 414646, or book an appointment to come to our Free Legal Advice Surgery, running every Thursday from 4.30 – 6.00 pm at our Midsomer Norton Office.