Choosing multiple attorneys in a lasting power of attorney (LPA) is an important decision that requires careful thought and foresight. Lasting powers of attorney allow individuals to assign someone to make decisions on their behalf should they lose the capacity to do so. These decisions might relate to financial matters or personal welfare. While many people may opt to name only one attorney, appointing two or more attorneys can help create a more robust and balanced framework. However, there are multiple considerations that need to be addressed when naming multiple attorneys to ensure that they can fulfil their roles properly and avoid potential conflicts.
The first step in any LPA process is understanding the types available. There are two main categories:
– Property and Financial Affairs LPA: This type grants your attorneys the authority to manage your financial assets, properties, and day-to-day financial obligations, such as paying bills or managing investments.
– Health and Welfare LPA: This type allows your attorneys to make decisions about your wellbeing, including medical treatment, living arrangements, and general welfare concerns. Significantly, this particular LPA can only come into effect once you lose mental capacity, whereas the Property and Financial Affairs LPA can be used prior to that if specifically authorised.
These two LPAs are separate legal documents, so you can, in theory, appoint different attorneys for each or use the same individuals across both. Once this distinction is fully understood, you can move forward in considering the next steps to naming multiple attorneys.
When choosing individuals to serve as attorneys, it isn’t simply a matter of asking trusted friends or family members. While trust is integral, the role of an attorney carries significant responsibilities that require various qualities and abilities. Key factors to analyse include:
– Trustworthiness: Being trustworthy is foundational for an attorney. This means not only that the person should have integrity, but also that they will act in your best interest at all times, adhere to the law, and treat your wishes as paramount.
– Organisational Skills: Attorneys will likely need to keep meticulous records, make numerous decisions, follow legal guidelines, liaise with other professionals, and manage possibly complex assets or care arrangements. Therefore, organisational skills are crucial to ensure everything is managed properly.
– Financial Acumen: For attorneys managing a Property and Financial Affairs LPA, financial stability and experience are important. An attorney who is already dealing with their own finances appropriately would be better equipped to handle another person’s financial matters.
– Interpersonal Skills: Serving as an attorney could involve engaging directly with medical professionals, carers, legal teams, or financial advisers, and sometimes even other family members. Strong communication and interpersonal skills are key to ensuring that an attorney can navigate these relationships effectively.
– Proximity: While it may not always be practical to name someone who lives nearby, geographical distance can complicate matters, particularly for decisions that require in-person attendance, such as those involving your physical health or home. Occasionally, matters may need urgent attention, and proximity may help with swift decision-making.
– Emotional Resilience: Serving as an attorney, particularly for health and welfare issues, can be emotionally challenging, especially when decisions involve end-of-life care, medical treatments, or complex living arrangements. Consider naming individuals who have shown emotional strength under pressure.
Once these qualities have been considered, and several names have been shortlisted, the next vitally important step is to look at how these attorneys will work together pragmatically.
Naming multiple attorneys provides options regarding how they make decisions. When setting up an LPA, you must specify how those individuals will act together, and there are several ways this can be structured, each with its own advantages and disadvantages.
When attorneys are appointed to act jointly, they must make all decisions together with unanimous agreement. In this case, every attorney must be consulted and consent to all actions. While this serves as an excellent safeguard against unilateral decisions that may not reflect your best interests, it can lead to significant delays and complications if disagreements arise or if one attorney is unavailable when a decision needs to be made urgently.
Another downside to joint decision-making is that if one attorney passes away or becomes unable to act for other reasons, the whole LPA may become invalid unless a replacement attorney is named or the document explicitly designates an alternative action.
When attorneys are instructed to act jointly and severally, each attorney can act independently of the others. In practice, this means any one of them can manage your affairs without needing the approval of the others so long as they are acting in your best interest.
This arrangement introduces more flexibility, ensuring that if one attorney is unavailable, business can still be conducted seamlessly. On the other hand, this arrangement does bring certain risks, as it’s possible that one attorney could make a decision that others may disagree with but have no power to prevent.
A more tailored approach is to opt for a hybrid system, where some decisions must be made jointly, while others can be made jointly and severally. For example, you might specify that major financial decisions, such as selling a property, require the unanimous consent of all attorneys, whereas routine matters like paying bills can be handled by any attorney on their own.
This structure gives you significant flexibility, allowing you to have a safety net around particularly consequential decisions but granting freedom for the everyday management of your affairs. However, such complexity may lead to confusion or misunderstandings, so clear instructions should be given in the LPA documents about which decisions fall into which category.
Naming multiple attorneys inherently introduces a potential for conflict. In cases where attorneys must act jointly, disagreements can stall essential decision-making. Even when acting jointly and severally, differences in approach or opinion can lead to tension amongst attorneys who disagree on how best to fulfil their duties.
Once in place, attorneys are legally required to act in your best interest, but since “best interest” can be open to interpretation, particularly in health and welfare cases, attorneys may still differ on the best course of action. For example, one attorney may feel strongly that you ought to remain at home with private care, while another may strongly advocate for residential care.
To minimise the potential for conflict, here are a few steps you can consider:
– Discuss Expectations in Advance: Before appointing multiple attorneys, initiate an open conversation with each of them. Discuss your values, preferences, and wishes in detail. Make sure they understand the importance of collaborating smoothly with other attorneys.
– Consider Relationships Between Attorneys: If you already know that two potential attorneys may not see eye-to-eye due to personality conflicts, it might be worth reconsidering that combination. It could also be helpful to name an additional, independent person as a third party to help mediate any disputes.
– Use a Professional Attorney: If you are concerned about family conflicts or any form of bias, you might consider using an independent professional attorney, such as a solicitor. This could ensure an impartial approach to decisions, though it will likely incur fees for services.
Even if you name multiple primary attorneys, it is wise to appoint replacement attorneys. A replacement attorney steps in if one of the original attorneys dies, steps down, or loses the capability to serve. This could prevent the entire LPA from becoming void and ensure continuity.
When choosing a replacement, many of the same considerations apply as with primary attorneys, such as trustworthiness, skills, and willingness to take on the role. It could be beneficial to name someone who is aware of the original attorneys’ preferences and the dynamics between them.
While the LPA allows an attorney the legal power to act on your behalf, you can influence the way decisions are made by providing detailed instructions. This can be particularly important in sensitive areas like healthcare choices or major financial decisions. There are several approaches to doing this:
1. Preferences: These are non-binding but offer guidance to your attorneys. For example, you might express a preference in your health and welfare LPA that you wish to remain in your own home for as long as possible, or to pursue certain medical treatments in the case of illness.
2. Instructions: These are legally binding and must be followed. For instance, in a Property and Financial Affairs LPA, you could instruct your attorneys to consult a financial adviser before selling a certain asset. However, highly specific instructions can sometimes limit your attorneys’ flexibility to act quickly or efficiently when new or unexpected circumstances arise.
Ensuring clear communication and thoughtful expression of your wishes is key to avoiding confusion between attorneys and ensuring your wishes are followed.
Given the potential for complications, it is often advisable to seek legal counsel when setting up an LPA with multiple attorneys. A solicitor specialising in estate planning or elder care can offer valuable guidance on legal intricacies, helping you better understand the ramifications of each decision and ensuring that your LPA is correctly drafted.
It’s also advisable to regularly review your LPA documents, especially if your relationships with your attorneys change or if your initial decisions seem outdated based on changing health or financial circumstances.
Appointing multiple attorneys under a lasting power of attorney is a decision that should be undertaken with considerable thought and care. While having more than one attorney can provide additional safeguards and help spread the responsibility, it also introduces complexity that must be managed thoughtfully.
Consider the personalities, capabilities, and relationships of the people involved, and think carefully about how they will work together. Provide clear instructions and preferences wherever possible, and don’t hesitate to seek professional legal advice. By taking these careful steps, you can ensure that your interests,
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