Where a client is wishing to appoint multiple attorneys or replacement attorneys, it should be considered how these attorneys are to act. Multiple attorneys can either act jointly, jointly and severally or jointly in some matters and jointly and severally in others.
- Attorneys acting jointly must make decisions for the donor together and must all agree.
- Attorneys acting jointly and severally on the other hand can either act together or independently.
- Attorneys may also act jointly in some matters and jointly and severally in others. An example of this being where a donor wishes the attorneys for the Property and Affairs LPA to act jointly in relation to matters worth over £10,000 and to act jointly and severally in all other matters.
On first glance, attorneys acting jointly seems very desirable. It provides an extra safeguard as all must act together and agree on the action, restricting the possibility for an attorney to act fraudulently. There are however a number of issues with joint appointments.
If attorneys live apart or, for whatever reason, are difficult to get together in the same place at the same time, it would mean that the attorneys would have difficulties making decisions.
If an attorney acting jointly refuses to act (disclaims), cannot act (through death, lack of capacity or in the case of Property and Affairs, bankruptcy) or a marriage or civil partnership between the donor and an attorney, the remaining joint attorneys can no longer act. Attorneys acting jointly are seen as a single unit by law, rather than as various separate units. If one attorney cannot act, that unit no longer exists and unless replacement attorneys are appointed, the LPA can no longer be used.
Due to this, WillPack strongly advice that multiple attorneys act jointly and severally due to its flexibility. Attorneys can continue to act should one of them be unable to act due to any of the above reasons.
A further possibility recommended by the OPG where attorneys are acting jointly is to have two LPAs. In the first LPA, attorneys can be appointed jointly. In the second LPA, the same attorneys can be appointed but acting jointly and severally, avoiding the problem should one of them be unable to act. This second LPA would include a restriction stating it would only come into effect should the first LPA fail.
This may of course be financially impractical for many clients as drafting costs and registration costs would double. It may however be an option for high net clients who want attorneys to act jointly to provide a safeguard, but are happy for a backup of them acting jointly and severally to avoid the LPAs failing.