December 16, 2023
Appointing Attorneys and Deciding How They Should Act
16 December 2023 Graham Hinitt
Matrix Estate Planning
When creating a Lasting Powers of Attorney and Appointing Attorneys the people you choose to act on your behalf are called your ‘Attorneys’. You need to choose at least one attorney and there is no upper limit, however, too many attorneys could cause issues, especially if they are appointed jointly which we will discuss below. It is highly recommended to name at least one replacement attorney in the event that your first attorney can no longer act for you, making your LPA unusable.
When selecting attorneys, you should think about the following questions:
It is important that you choose your attorneys for the right reasons. You should not feel you have to choose someone because you don’t want to leave them out or offend them. Attorneys are responsible for making sometimes very important decisions and some people may not be a good fit for this role.
In addition to deciding who should act as your attorney, you also need to decide how the attorneys can act. We have compiled a quick guide below which outlines the pros and cons of each:
Jointly and Severally
This option tends to be the most commonly used option as it offers the most flexibility for the attorneys. Attorneys can act independently of each other, so they do not all have to be in agreeance on all decisions which helps if there is a dispute between them or if attorneys live in different countries. However, this can also be a negative point as an attorney can act alone so there is less supervision from the other attorneys. If any attorneys die or become unable to act, the other attorneys can still use the LPA as normal.
This option offers more protection to Donors as all attorneys must agree on all decisions and they cannot act independently, therefore minimising the issue of foul play by the attorneys. However, this can also be a negative point as this option has less flexibility. As all attorneys have to agree on every decision, no matter how big or small that decision is, matters can end up going to court if the attorneys cannot agree. Another pitfall of attorneys acting jointly is that if one attorney dies or can no longer act, all of the attorneys can no longer act as they are appointed together jointly. Unless replacement attorneys have been named in the form then the LPA will cease at that point.
Jointly for some decisions, Severally for others
This option can give the Donor the opportunity to choose what decisions must be agreed upon unanimously. This generally applies to the more important decisions such as selling the Donor’s house, the Donor going into care etc. However, if one of the attorneys dies or can no longer act, the LPA will stop working for the decisions that needed to be made jointly unless at least one replacement attorney has been appointed.
If you are interested in speaking to someone about Lasting Powers of Attorney, as well as other important documents such as Wills, please contact:
Graham Hinitt on: 07786361139
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