When a donor is making a Lasting Power of Attorney (LPA), they need to give great consideration to who will be their attorneys to act on their behalf. Ultimately this decision is theirs and should be people who they trust completely. There are however a number of different factors that they should consider when naming their attorneys.
Capacity of the Attorneys
The first thing that should be considered is the attorney’s own age and capacity. Attorneys must be 18 or over at the time the LPA is created and must have the capacity to act. Property and Financial Affairs LPAs also have an additional restriction that a person who is currently bankrupt or has a debt relief order can’t be an attorney. If an attorney is appointed who later becomes bankrupt, their appointment would be revoked. The donor may therefore need to consider the proposed attorney’s own finances. This does not affect a Health and Welfare LPA.
Relationships between the Attorneys
Where multiple attorneys are being appointed, the relationships between those attorneys should be considered. If the relationship between the proposed attorneys is not good, those attorneys may disagree on what is in the donor’s best interests and lead to disputes.
Where the donor’s financial affairs are complex, it should be considered whether the proposed attorneys have the required skills to manage their property and finances under a Property and Financial Affairs LPA. The donor may wish to consider alternative attorneys who do have the ability to manage their finances.
Where the donor has a business but their personal finances are simpler, they may wish to consider a business LPA appointing skilled attorneys to act relating to their business and others to act in relation to their personal finances.
Number of Attorneys
Whilst the LPA form only has space for 4 attorneys and two replacement attorneys, there is no limit to the number of attorneys that can be appointed to act at once as more attorneys can be listed on continuation sheets. However there may be practical difficulties in a large number of attorneys acting together at once, particularly if they have different opinions on what is in the donor’s best interest. The OPG do not recommend more than four attorneys act at once. Where the donor has a large number of people they wish to act, it may be more beneficial to consider naming some as replacement attorneys instead.
For couples, it may be the case that they only want their partner to act as their attorney. This is fine to do so, but they should consider replacement attorneys. In the event of one of them dying or losing capacity, the other partner would be left with no attorneys if no replacement attorneys are named.
Location of the Attorneys
Whilst there is no restriction on foreign attorneys acting, the location of the attorneys should be considered by the donor. An attorney living abroad or far away from the donor may face practical difficulties in acting on their behalf if the attorney’s physical presence is ever required.