If you are considering a lasting power of attorney (LPA), your choice of attorney is the most important decision you will make. If you, as the donor, are ever in a situation where you lost capacity, your attorney will have legal authority to make decisions that can have a profound impact on your life. Indeed, with a Health and Welfare LPA, the attorney might even be making life and death decisions about medical treatment.
You should ask yourself not just who can act as your attorney, but also who should act as your attorney.
The basic criteria for an attorney
There are some, very basic, legal restrictions. To be appointed, an attorney must:
- be over 18 years old,
- have mental capacity,
- in the case of a Property and Financial Affairs LPA, not be bankrupt when it is made.
Beyond that legal minimum, the Office of the Public Guardian does not make any assessment of your attorney’s suitability. There are no other strict rules on whom you appoint, meaning that, in theory, and if they consent, you could appoint a stranger on the other side of the world.
However, given the importance of the decisions a lasting power of attorney enables, it’s sensible to choose someone you will trust with those decisions if you lack mental capacity.
Who should you choose as an attorney?
In practice, you are likely to have a shortlist of the people you would consider as an attorney. These may include members of your family, like a spouse or child, close friends, or trusted professionals.
When considering these, you should think about the types of financial, health and care decisions they might need to take. It’s impossible to cover every potential circumstance, so while you might know how they would deal with some specific situations, it’s also useful to make sure your overall values and beliefs align, or if not, that you trust them to respect yours.
This might be important when it comes to things like medical treatment, where people can have different views on everything from vaccinations to life-sustaining treatment.
You should also consider how they handle their own decisions. If your prospective attorney can’t manage their own affairs and financial decisions well, for example, they won’t be able to act in your best interests in a Property and Financial Affairs power of attorney.
And while it might be hard to think about, you should also be practical about when your LPA might be needed. Although you might lose mental capacity for many reasons, for most people, it’s likely to be a result of age-related decline.
It’s sensible to plan ahead, which means you should consider whether having attorneys who are your age, or older, like a spouse or parents, will be practical. If you do want to appoint someone in that category, you should also consider what would happen if a replacement attorney were needed.
How should they exercise your power of attorney?
Finally, think about how you will structure your LPA. This may help guide your choice, since it may mean that you can address small concerns you might have. There are three main ways you can do this.
Specifying decisions as joint or several
It’s sensible to have more than one attorney, and if you do, you can specify how decisions must be taken, either jointly or severally. Jointly, as it sounds, means all the attorneys must act jointly, agreeing on decisions. But, if attorneys are allowed to act severally, each can act independently, without even advising the other attorneys.
In practice, you might want a mix. Allowing attorneys to act severally on routine matters, like paying bills on your behalf, but jointly on major decisions, such as selling property or moving your care provision.
Issuing guidance
You can include guidance in your LPA. This does not bind your attorneys but means they must consider it when making decisions. This is useful for conveying a broad sense of your wishes, or detailing things that you would like to happen, but realise might be impossible in some circumstances.
An example of this might be where you would like to protect your family’s inheritance, but recognise that there might come a point where your attorneys must sell some assets to fund care.
Making restrictions
Restrictions allow you to set binding rules. These, effectively, limit the attorneys’ power to act. If a decision covered by the restriction is required, the attorney will only have the power to act in the way you have set out.
You might, for example, require some practical steps ahead of some decisions, such as a need to seek legal advice or consult family members. Or you might even make a particular choice for them, for example, an advanced decision about healthcare treatment.
Making your choice
Ultimately, your choice of an attorney is down to you. And usually, your main consideration will be identifying the people who you trust to act in your best interests. For many people, this will be a close family member, such as a child.
Many others will also appoint a legal professional as one of their property and financial affairs attorneys, since they can take an independent view while still acting in your best interests.
Whatever your choice, the key thing is that it gives you the peace of mind that, should it ever be needed, your interests will always be protected.
Our experienced team at The Right Will can help guide you through the process. Get in touch today.
