Choosing who to appoint as attorney is the most important part in the process of making a Lasting Power of Attorney (LPA). Your attorney will be the person making decisions about your property and financial affairs and/or health and welfare should you become incapacitated. Acting as an attorney is an important role. You should choose someone you trust and can rely on to make decisions that are in your best interest.
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 you choose your spouse or civil partner to act as an attorney, their power to act as such will cease if your relationship is dissolved or annulled.
If professional attorneys are appointed, they will charge a fee for acting.
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 your affairs.
If more than one attorney is appointed, you 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.
A donor can appoint a replacement attorney to act when an original attorney can no longer act.