One of the first things to consider are the attorney’s own age and capacity. An attorney must be over 18 at the time the LPA is created and must themselves have the capacity to act. For obvious reasons it is unwise for the donor to appoint someone much older than themselves, or whose capacity is questionable for any reason.
You should be aware that a person cannot act as an attorney if they become bankrupt and that their appointment will be revoked. This does not affect a Health and Welfare LPA.
If you are giving the power to your attorneys in a Health & Welfare LPA to refuse life sustaining treatment you need to be sure that your chosen attorney would be capable of making this difficult decision.
For Property & Finance LPAs. Is your estate complex? Do you have a myriad of investments or a property portfolio that needs to be managed?
Maybe you have business interests that need to be dealt with separately. You must consider whether you need to appoint someone with special skills to manage your assets. This may be a professional like an accountant or Independent Financial Adviser to manage your investments, or even an individual that you know has the appropriate skills and experience.
When considering professional attorneys make sure to also consider their fees. This is most true of ‘Business LPAs’ where it is important to the business that the attorney has knowledge of the business and preferably experience in it. In some cases, the chosen attorney may also need to have certain qualifications and be subject to the same regulation to yourself. Take for example the Managing Partner of a solicitor’s firm; they would only be able to appoint another suitably qualified solicitor as their attorney to make decisions regarding the firm.
It’s possible to appoint a sole attorney, but there is no upper limit on how many attorneys can actually be appointed. That said, it’s never usually wise to appoint more than four attorneys and the Office of the Public Guardian (OPG) don’t encourage this.
Regard should be had to whether replacement attorneys are needed. Who would you want to make decisions for you if any of your first choice of attorneys were unable to act? If you are appointing a sole attorney you should strongly consider appointing a replacement attorney. Please note that if your sole attorney becomes unable to act then the whole LPA will fail without a replacement.
If you are appointing multiple attorneys, you will need to decide how they will act. There are three options:
Jointly, jointly and severally, and jointly for some decisions but jointly and severally for all others (the hybrid power). If you are considering appointing attorneys to act jointly you especially need to be aware of the effect on your LPA if any of your attorneys become unable to act.
It is common to appoint your spouse as your sole attorney. Please be aware that this can cause an issue if you and your spouse/partner own property together. All jointly owned land in England & Wales is held on a trust of land, usually with the joint owners holding the property on trust for themselves. When transferring the land, a minimum of two trustees are required to give good receipt of capital monies, overreaching any underlying beneficial interests. If one owner has lost capacity and your sole attorney is also the other owner, the attorney cannot give receipt in their capacity as both owner and attorney; two separate signatures are required.
In such a case as this the attorney would have to take extra steps to appoint a co-trustee to act with them under s36(6)(b) of the Trustee Act 1925.
There are also factors that have not been touched upon that will be very personal to each of you, for example would it be practical to appoint your relative who lives abroad? Can you afford professional attorney’s fees? Most importantly, we must definitely not overlook the proposed attorneys’ relationship with each other. It’s important that they get along well enough to make decisions together.
This blog has covered only what I feel are the main points to think about when you are appointing attorneys. I hope you have found it useful.
26 October 2020
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