Where a client is wishing to appoint multiple attorneys or replacement attorneys, it should be considered how these attorneys are to act. There are three different ways that multiple attorneys can act and each have their own advantages and disadvantages. Multiple attorneys can either act jointly, jointly and severally, or jointly in some matters and jointly and severally in others.
Attorneys acting jointly
Attorneys acting jointly must make decisions for the donor together and must all agree. On first glance, this seems desirable as it offers an extra safeguard as it restricts the possibility of an attorney acting fraudulently. However there are a number of issues with joint appointments.
Joint appointments offer a lack of any flexibility. 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 those attorneys could have difficulty making decisions for the donor. It also means that if one attorney is temporarily unavailable, for example if they are on holiday or in hospital, the remaining attorneys could not make decisions for the donor.
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 ends, 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.
Attorneys acting jointly and severally
Attorneys acting jointly and severally can either act together or independently. This offers additional flexibility over a joint appointment and also allows for remaining attorneys to continue acting in the event that an attorney refuses or cannot act.
The ability for attorneys to act alone is open to some criticism as an attorney could make decisions without the other attorney’s knowledge, however it can also be argued that an attorney who acts in this way could be challenged for not acting in the donor’s best interests as it is a requirement when considering the donor’s best interests that an attorney consults with the other attorneys as far as reasonably practical.
Attorneys acting jointly for some matters and jointly and severally for other matters
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 Financial Affairs LPA to act jointly in relation to matters worth over £10,000 and to act jointly and severally in all other matters. This appointment ensures that attorneys must act together for decisions important to the donor but allows the attorneys flexibility to act alone for other decisions.
The event of an attorney refusing or being unable to act can make these appointments complicated. For any joint decisions, the remaining attorneys can no longer make those joint decisions. In the event that there are no replacement attorneys named, no one will be able to make joint decisions. The remaining attorneys will however be able to continue making the jointly and severally decisions.
WillPack strongly advise that multiple attorneys act jointly and severally due to its flexibility over the other appointments and the ability for attorneys to continue to act should one of them be unable to act.
A further possibility recommended by the OPG if the clients wish for the benefits of a joint appointment but wish for the flexibility to allow attorneys to continue acting could be to create 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.