The importance of making a Lasting Power of Attorney is, thankfully, becoming more widely promoted. There is very little advice though on how to choose the people you want to be responsible for your affairs should you become unable to look after them for yourself. This post aims to put that right ...
Should you become too ill to manage your own affairs or make decisions for yourself, naming Attorneys in a Lasting Power of Attorney, ensures that those you wish to look after you can. Becoming someone's Attorney though, is a massive responsibility. So, how do you choose?
How do you choose your Attorney in your LPA?
Well, your Attorney needs to be 18 or over, and, if you're making a Lasting Power of Attorney (LPA) for property and financial affairs (see below) you can't choose someone who is subject to a Debt Relief Order or is bankrupt.
Other than having to have the mental capacity to make their own decisions, there are very few other provisos.
There are though, some common misunderstandings worth clarifying.
Attorneys do not need to live in the UK or be a British citizen (they can live anywhere and be from anywhere). They do not need to be a solicitor or a family member. So long as they meet the criteria stated above, they can be anyone. Typically people choose a relative, a friend, a professional (such as a bank manager or solicitor), their husband, wife, life partner or business partner.
Before drawing up your shortlist, ask yourself these questions:
- How well does the person you have in mind look after their own affairs, for example their finances?
- How well do you know them?
- Do you trust them 100% to make decisions in your best interests?
- Will they be happy to make decisions for you?
You may also find it useful to read about an Attorney's responsibilities to help you with your decision and to pass this link on to those you ask to make sure they are prepared to take on the responsibility.
How many Attorneys do I need?
There is no limit on the number of Attorneys you can have. The number of Attorneys you would be advised to have would depend on your individual circumstances. For some people, having one Attorney may be sufficient, but for others it may be the case that three or four Attorneys may be more suitable. It is rare for people to need more than four Attorneys and the most usual number is two.
We recommend naming at least two, and naming at least two replacement attorneys, in case any are unable to take up the role when the time comes.
You can even allocate different areas of responsibility to each (spreading the burden for them and any potential — however unlikely or unintended — risk to you).
Before exploring this further, let's first consider what an Attorney has to do.
What does an Attorney have to do?
When you name someone as your Attorney in your Lasting Power of Attorney document you are giving them the legal authority to deal on your behalf with third parties, such as banks, your local council and doctors.
So, at some point in the future, these people may have to take on the responsibility of managing your affairs in the following ways:
- Looking after your bank accounts, savings, investments or other financial affairs
- Buying and selling property on your behalf
- Claiming and spending welfare benefits on your behalf
- Deciding where you live
- Making decisions about your day-to-day personal care or healthcare
Whilst many people name next of kin as Attorneys, it can be wise to consider wider afield. Of course we all want our family to look after us, but what if they do not have the ability or the appetite to take on such responsibility? What if the thought of doing so causes them unnecessary anxiety, or maybe even causes tension amongst other family members you have not named? Sometimes, you can get round such issues by having multiple Attorneys and stating that you want them to make decisions jointly (read on...)
So, whodo you know, family members, friends, professionals (e.g. your solicitor, your bank manager, your accountant) that you:
A: Trust 100%
B: Know to be capable of taking on such responsibility
C: Know to be willing to take on the responsibility?
How can you share the responsibility of your care between different Attorneys?
There are three types of Power of Attorney you can make to ensure different people are responsible for different areas of your life:
A "Property and Financial Affairs" LPA gives your Attorney the authority to deal with buying and selling your property, your bills, bank accounts and investments.
A "Health and Welfare" LPA covers decisions about health and care and even deciding where someone is to live. This can only be used if someone is incapable of dealing with such matters themselves.
A "Business" LPA is a good idea if you own a business or are a director of a business because recent changes in legislation and case law mean it is now almost impossible to remove a Company Director who has lost mental capacity. Would you want your business to be run by someone who is unable to make logical decisions?
Whichever LPA(s) you make, you can name as many Attorneys as you like and you can name the same Attorneys for each if you like, or you can name different Attorneys. If you do name more than one Attorney you need to explain within the LPA form how you want them to work.
There are several choices: 'Separately or together' — sometimes called 'jointly and severally' — meaning Attorneys can make decisions on their own or with other Attorneys; 'together' — sometimes called 'jointly' — meaning all the Attorneys have to agree on the decision; you can also choose to let them make some decisions 'jointly', and others 'jointly and severally'.
How do you make a Lasting Power of Attorney?
Whilst it is relatively easy to go the 'do it yourself' LPA way, the cost of taking legal advice if you are in any doubt about what to do, or who to choose, is surprisingly affordable and, we are told, a good foil if you need to explain to a family member why you have not named them!
A growing number of organisations and membership bodies representing particular trades offer employees and members discounted legal services, such as writing a Will or making a LPA. So, check out with your employer or any trade organisation you belong to before making any decisions.
Whichever route you take, make sure you've spoken to your chosen Attorneys, provided them with written instructions regarding your wishes and that they have agreed to take on the responsibility. Ask them to read this fact sheet from Citizen's Advice too, to make sure that they are well informed about the role and responsibility of an Attorney.
Further advice and information
- The National Care Line website gives information on a number of subjects as well as Power of Attorney.
- Alzheimer's Society provides independent advice and support to people who are named Attorneys of people with dementia or Alzheimer's disease and has produced a Dementia-friendly Financial Services Charter which promotes the rights of people with dementia, and aims to ensure that providers of independent financial services do not take advantage of them and / or sell them products which they do not need.
- The Age UK website also provides information on Power of Attorney.
- The Money Advice Service website provides advice on Power of Attorney.
- The Which? website offers advice on all aspects of Power of Attorney.
- If you are struggling to manage your money and pay for things by yourself then Pay Your Way offers a guide on safe ways in which you can allow other people to pay for things on your behalf, whilst still staying in control of your finances.