When making a Lasting Power of Attorney, many people already have somebody in mind. Married couples often choose one another, while parents may decide to appoint their adult children.
These are perfectly reasonable choices, but it is worth considering what the person you appoint might eventually have to deal with.
An attorney could be responsible for managing your bank accounts, paying household bills, speaking to doctors or making decisions about your care. Some of these responsibilities may involve relatively straightforward administration, while others could require difficult decisions at an already stressful time.
The person you trust most may be well suited to the role, although there are practical questions worth discussing before you make the appointment.
What responsibilities will your attorney have?
There are two types of Lasting Power of Attorney (LPA) in England and Wales.
A Property and Financial Affairs LPA allows your attorney to manage financial matters on your behalf. Depending on the authority you give them, this might include dealing with your bank accounts, paying bills, managing investments or selling property.
A Health and Welfare LPA covers decisions about your personal care, medical treatment and where you should live.
The distinction matters when choosing who to appoint. Someone who is comfortable dealing with money and paperwork may be less confident discussing medical treatment or care arrangements.
You can appoint the same person under both LPAs or choose different people for each.
There is also a difference in when the documents can be used. A registered Property and Financial Affairs LPA can be used while you still have mental capacity, provided you have authorised this and give your permission. A Health and Welfare LPA can only be used when you lack the mental capacity to make the particular decision yourself.
Both types must be registered with the Office of the Public Guardian before they can be used.
Choosing your husband, wife or partner
For many couples, appointing one another feels like the natural thing to do. Someone who has shared your life for many years is likely to understand your preferences and be familiar with your circumstances.
It is still worth talking about what the appointment would involve.
If one person has always managed the household finances, for example, the other may have very little experience dealing with savings, investments or financial paperwork. They may be perfectly capable of taking on those responsibilities, but it would be sensible to discuss them beforehand.
Age and health can also be relevant. A couple in their seventies may be happy to appoint one another, while recognising that they could both need assistance at some point in the future.
Appointing a replacement attorney can provide some reassurance if the original attorney is no longer able to act.
The same considerations apply to unmarried couples. You can appoint your partner as an attorney regardless of whether you are married or in a civil partnership.
Should you appoint all your children?
Parents sometimes want to appoint all their adult children because they feel uncomfortable choosing between them.
There may be good reasons for doing so, particularly where the children have a close relationship and are comfortable making decisions together.
However, being appointed as an attorney carries responsibilities, and family circumstances are not always straightforward.
One child may live locally and already help with appointments and day-to-day matters. Another may live several hours away but be particularly capable when it comes to managing finances. A third might have significant family or work commitments that would make the role difficult.
There is no requirement to appoint children equally, and the eldest child does not automatically have any greater entitlement to the role.
It is also worth considering how your children communicate with one another. If they have different opinions about money or care arrangements, appointing them to make every decision together could cause difficulties.
These conversations can feel uncomfortable, particularly if somebody worries that a child who has not been appointed will feel excluded. Nevertheless, the appointment needs to work in practice if it is ever required.
Appointing more than one attorney
Where two or more attorneys are appointed, you must decide how they will make decisions.
You can appoint them to act jointly and severally, allowing each attorney to make decisions independently or together.
Alternatively, you can appoint them jointly, which requires them to agree on every decision.
There is also an option to require joint decisions for certain matters while allowing attorneys to act independently for others.
Consider two adult children appointed to manage their mother’s financial affairs.
If they act jointly and severally, either may be able to deal with routine banking or household bills without needing the other’s agreement each time.
If they are appointed jointly, both must participate in every decision, even relatively minor ones. This may be manageable while everyone is available and in agreement, but could become difficult if one lives abroad or cannot be contacted.
Joint appointments can also create problems if an attorney dies or becomes unable to act. Depending on the terms of the LPA, the remaining attorneys may lose the authority to continue making joint decisions.
For these reasons, the way attorneys are appointed deserves careful consideration. It is possible to make arrangements for particular decisions to be taken jointly, but the wording needs to be correct.
Can you appoint someone outside your family?
An attorney does not have to be a relative.
You may prefer to appoint a close friend who knows you well, understands your wishes and would be comfortable taking responsibility.
Some people have no close relatives, while others have family members who would find the role difficult or simply do not wish to take it on.
Professional attorneys are another possibility, particularly where financial affairs are complicated. Professional appointments will usually involve fees, which should be discussed and understood beforehand.
An individual attorney must be at least 18 and have mental capacity. There are also restrictions on who can act under a Property and Financial Affairs LPA. For example, someone who is bankrupt or subject to a Debt Relief Order cannot be appointed to that role.
There is no general requirement for an attorney to live in the United Kingdom, although distance may affect how easily they can deal with practical matters.
Someone living overseas might be comfortable managing financial affairs remotely but find it more difficult to attend meetings with care providers or healthcare professionals.
What happens if your attorney can no longer act?
An LPA may remain unused for many years after it has been made.
During that time, the person you originally appointed could die, lose mental capacity or decide they no longer want the responsibility.
You can name replacement attorneys when making the LPA. They can take over in circumstances where an original attorney is permanently unable to continue acting.
The arrangements become more complicated where several attorneys have been appointed, particularly if they must make decisions jointly. Replacement attorneys do not simply step in temporarily whenever somebody is unavailable.
It is therefore sensible to consider the original appointments and any replacements together, rather than treating the replacement section as an afterthought.
An LPA can also be affected if an attorney is your spouse or civil partner and the marriage or civil partnership legally ends. Unless the document provides otherwise, that attorney’s appointment will generally end.
If you already have LPAs in place and your family circumstances have changed, it may be worth reviewing whether the appointments remain suitable.
Talk to the people you intend to appoint
Before naming somebody as an attorney, ask whether they would be willing to take on the responsibility.
Most people would probably regard the invitation as a sign of trust, but they should also understand what might be expected of them.
It is worth discussing your financial arrangements, your preferences about care and any particular concerns you have about the future.
You may have strong views about remaining in your own home for as long as possible, for example, or about how your money should be managed. Your attorney will be required to follow the relevant legal duties, including acting in your best interests where you lack capacity, but understanding your wishes in advance can help them make decisions.
You can also include appropriate preferences and instructions within an LPA. These need to be carefully drafted because unclear or contradictory wording can cause problems when the document is registered or used.
At AHJ Wills & Estates, we help individuals and families across Sheffield, Rotherham and the surrounding areas prepare Lasting Powers of Attorney and consider who would be suitable to act on their behalf.
If you are thinking about making an LPA, it is worth discussing the proposed appointment with the people involved before completing the paperwork. Their willingness to help is important, but so is their understanding of what they may eventually be asked to do.
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