Choosing the LPA attorney

 

Choosing who to appoint as attorney is the most important part in the process of making a Lasting Power of Attorney (LPA), as the attorney will be the person making decisions about the donor’s property and financial affairs and/or health and welfare should the donor become incapacitated. Acting as an attorney is an important role. The donor should choose someone they trust who knows them well enough to make decisions that are in their best interests.

 

Who can act as attorney?

A donor can choose whoever they wish to act as attorney, be it a friend, family member, a professional or a trust corporation, provided they are:

In the case of a Health and care LPA:

  • an individual aged 18 or over with mental capacity

 

In the case of a Financial LPA:

  • an individual aged 18 or over with mental capacity and who is not a discharged bankrupt, or
  • a trust corporation

 

If an attorney of a Financial LPA becomes bankrupt after the LPA has been made, they will no longer be able to act.

 

If a donor chooses a spouse or civil partner to act as an attorney, their power to act as such will cease if their relationship is dissolved or annulled unless the donor has included an instruction in the LPA that the spouse or civil partner can continue to act as attorney in such circumstances.

 

Where the appointment of an attorney is terminated by bankruptcy or divorce, if the spouse, civil partner or bankrupt is the sole attorney or is appointed jointly with another attorney (as opposed to jointly and severally), the LPA will be cancelled unless the donor has named a replacement attorney.

 

If professional attorneys are appointed, they will charge a fee for acting. The Office of the Public Guardian’s (OPG) guidance accompanying the LPA forms suggests that the donor should include an instruction regarding payment of a professional attorney in section 7 of the LPA form and provides example wording.

 

If the donor wants to pay a lay attorney, this should also be stated as an instruction in section 7 of the LPA as the attorney can’t be paid otherwise. Again, the OPG guidance provides example wording.

 

Both professional and lay attorneys are entitled to be reimbursed expenses.

 

 

Number of attorneys

 

There is no maximum number of attorneys that can be appointed, but the higher the number of attorneys, the more difficult it can be to effectively manage the donor’s affairs.

If more than one attorney is appointed, the donor must decide whether they are to act jointly, jointly and severally, or jointly in some matters and jointly and severally in other matters. If the attorneys act:

  • jointly, they must always act together (for example, they must all sign any documentation in respect of the donor’s affairs); this can sometimes cause practical difficulties if one of the attorneys is temporarily unable to act, for example, by being abroad when urgent action is needed, or if one of the attorneys is permanently unable to act, in which case the role of the joint attorney is also brought to an end. This will mean that the LPA is cancelled unless replacement attorneys are named in the LPA
  • jointly and severally, they can act together or separately (for example, one attorney can sign documentation relating to the donor’s affairs on behalf of all attorneys). If one attorney can no longer act, temporarily or permanently, the co-attorneys can continue to act; the LPA will not therefore be cancelled in such circumstances
  • jointly in respect of some matters, and jointly and severally in respect of other matters, the donor should explain clearly in the LPA what these matters are to avoid problems in practice. This option does not mean that the donor can stipulate that certain decisions can be made by a particular attorney as no decisions can be allocated to one attorney alone; all decisions must be made jointly or jointly and severally (Re Freeman (an order of the Senior Judge made on 17 August 2011)).

 

Replacement attorneys

 

A donor can appoint a replacement attorney to act when an original attorney can no longer act due to one of the following trigger events:

  • attorney’s disclaimer of their appointment
  • attorney’s death
  • attorney’s bankruptcy (this only applies to Financial LPAs and not also to Health and care LPAs)
  • dissolution or annulment of marriage/civil partnership between the donor and the attorney, or
  • attorney’s lack of mental capacity

 

The replacement attorney cannot act on a temporary basis, for example, whilst the original attorney is overseas (Re Jenkins (an order of the Senior Judge made on 2 September 2008)).

The donor can appoint as many replacement attorneys as they like but not successive replacements; a replacement attorney cannot replace a replacement attorney. This was clarified and confirmed in Office of the Public Guardian v Boff, MHLO (2013) 88 (LPA). In this case, Senior Judge Denzil Lush suggested a way around this if the donor wanted successive replacement attorneys; to execute two different LPAs:

  • the first appointing the original chosen attorney and the first replacement attorney, and
  • the second LPA appointing the second chosen replacement as the first named attorney, and the third chosen replacement attorney as the first replacement attorney. The second LPA could stipulate that it should not take effect until the first LPA ceased to be operable

 

If a donor appoints more than one attorney and more than one replacement attorney, it should be stated in the LPA the order in which the replacement attorneys should act. For example, whether the replacement attorneys should act when one of the original attorneys cannot act or only when all of the original named attorneys can no longer act.

 

If a replacement attorney needs to act, the OPG must be informed and the original LPA returned to it to be updated accordingly.

 

An attorney cannot choose their own replacement attorney.

 

Invalid restrictions where more than one attorney appointed

 

If a donor appoints more than one attorney, the donor must understand that their authority to act is equal. The donor cannot therefore stipulate in the LPA that, for example:

  • the view of the majority of attorneys will prevail in the event of a dispute (Re P Crook (an order of the Senior Judge made on 2 July 2010), Re Pugh (an order of the Senior Judge made on 13 July 2011))
  • one attorney must defer to the other (Re Davies (an order of the Senior Judge made on 5 July 2010))
  • the decision of one attorney will be final (Re Williams (an order of the Senior Judge made on 16 November 2011)), or
  • one attorney should deal with certain matters and another attorney should deal with others (Re Moore (an order of the Senior Judge made on 26 October 2010))