Whom should I appoint as my attorney?
An attorney is appointed within a Lasting Power of Attorney (LPA) to assist the donor (person making the LPA) with their property and financial affairs and/or health and welfare. The attorney will make decisions on behalf of the donor, either once mental capacity has been lost, or whilst the donor still has capacity but with their consent. An attorney cannot be forced to act, and should be consulted before the LPA is drafted.
Every decision made by an attorney/s will affect the donor. This is why it is important an attorney should be someone the donor trusts implicitly to act within his or her best interests. If there are any doubts about the attorney's intentions, they should not be appointed.
It is also important to consider wider factors when appointing an attorney, for example their ability to manage money, whether they have a history of debt, or an addiction that has impacted on their financial affairs. If any of these issues concern a potential attorney, we would recommend an alternative.
When discussing who to appoint as an attorney, it is common for partners to forget about their spouse, as many view themselves as a team who will need looking after together. Providing a spouse is suitable, we recommend they be appointed. Due to the close nature of the relationship, finances and lifestyle choices will be known to each other and decisions could be made confidently by the spouse.
We recommend more than one attorney is appointed but no more than four. One reason for this is an attorney role is quite onerous, especially once the donor's loses capacity. If more than one attorney is appointed, on a joint and several basis, more than one attorney can make decisions and less pressure is placed on just one person. Furthermore, if only one attorney is appointed and they are unable or unwilling to act, the LPA would fail, provided that replacement attorneys were not appointed.
A replacement attorney/s can be appointed, in the event that the first appointed attorney/s do not wish to act or are unable to for whatever reason. It is a good idea to include replacement attorneys as more of a safety net, should all of the initial attorneys not be willing or able to act. If a replacement attorney/s' appointment needs to be activated, the LPA will need to be sent to the Office of the Public Guardian to be updated to note the replacement attorney/s now act as the main attorneys. This can take up to eight weeks. In the meantime, the LPA cannot be used. This is particularly relevant with Health and Welfare LPA's as there may be an emergency life sustaining decision to make.
It is common for a donor to appoint their spouse and children as their attorneys. It is important to consider how well they all work together. If there were some contention between the parties, it would not be advisable these parties are appointed. This is relevant when looking at a blended family, for example a spouse who is a step-parent to the donor's children. When appointing children a donor should not appoint all of their children so that one, or some do not 'feel left out'. An attorney must be appointed for the right reasons and be trusted to manage the donor's affairs.
To summarise, an attorney must be someone you trust to make the best decisions on your behalf. If you are struggling to think of an attorney and would like an LPA drafting, Chattertons can act as professional attorneys to manage your property and financial affairs. We are highly regulated and will always act in your best interests.
Need Lasting Power of Attorney (LPA) Advice?
If you have, any queries regarding the points raised in this blog, please contact Sian Blackman, who will be happy to assist: