Introduction: One of Life's Most Important Decisions
Choosing who will act as your attorney under a Lasting Power of Attorney (LPA) is one of the most significant decisions you'll ever make. These are the people who will step into your shoes and make crucial decisions on your behalf if you lose mental capacity, whether through dementia, a serious accident, or sudden illness.
Here's the thing that makes this different from writing a Will. A Will takes effect after your death, but an LPA operates whilst you're still alive but unable to make decisions for yourself. Your attorneys will have considerable power over your finances, property, health, and welfare, depending on which type of LPA you create. That's why getting this decision right really matters.
This guide will walk you through everything you need to consider when choosing your attorneys. We'll cover legal requirements, personal qualities to look for, and help you make an informed decision that protects your interests and reflects your values.
Understanding What Attorneys Do
Before you start thinking about who to appoint, it's important to understand what your attorneys will actually be doing. In England and Wales, there are two types of LPA, and they cover very different aspects of your life:
Legal Requirements: Who Can Be Your Attorney?
Under the Mental Capacity Act 2005, there are some basic legal requirements your attorneys must meet. Think of these as the starting point for narrowing down your potential candidates.
Essential Qualities to Look for in an Attorney
Right, so meeting the legal requirements is just the beginning. The person you choose needs a combination of practical abilities and personal qualities. Let's look at what really matters.
Single Attorney or Multiple Attorneys?
You can appoint one attorney or several. Each approach has its pros and cons.
Joint or Joint and Several? Understanding Decision-Making Arrangements
If you appoint multiple attorneys, you need to decide whether they act "jointly", "jointly and severally", or "jointly for some decisions, jointly and severally for others". Let me explain what each of these means.
The Importance of Replacement Attorneys
Replacement attorneys (also called successor attorneys) step in if one of your original attorneys can no longer act. This might happen if an attorney:
• Dies
• Loses mental capacity themselves
• Becomes bankrupt (for Property and Financial Affairs LPA)
• Decides they no longer wish to act
• Moves abroad permanently
Appointing replacement attorneys provides continuity and means your LPA doesn't become invalid if something happens to your original attorneys. It's a crucial safety net.
Professional Attorneys: When to Consider a Solicitor
You don't have to choose family or friends as attorneys. Professional attorneys, typically solicitors, can act for you. They bring expertise, objectivity, and continuity.
Different Attorneys for Different LPAs
You don't have to appoint the same people as attorneys for both types of LPA. In fact, there are good reasons to consider different attorneys:
• Different skills required. Financial management needs different abilities than making healthcare decisions
• Different relationships. You might trust your financially astute sibling with money matters but prefer your spouse to make healthcare decisions
• Reducing burden. Splitting responsibilities means one person isn't overwhelmed
For example, you might appoint:
• Your spouse and children jointly and severally for Property and Financial Affairs
• Just your spouse for Health and Welfare (because they know your wishes most intimately)
Think about the practicalities. If your spouse needs to make a quick healthcare decision, they can act immediately without needing to consult your other financial attorneys.
What Happens If an Attorney Can't Act?
Understanding what happens if an attorney can't fulfil their role helps you plan properly. Let's look at the different scenarios.
Having the Conversation: Discussing Your Wishes with Your Chosen Attorneys
Once you've decided who to appoint, you need to have an open conversation with them. This isn't a decision you should make without their knowledge and consent.
Special Considerations and Common Questions
Making Your Decision: A Practical Approach
Choosing attorneys is a significant decision, but approaching it systematically makes it manageable. Here's how:
Conclusion: Protecting Your Future Through Careful Choice
Choosing the right attorneys is perhaps the most important aspect of creating a Lasting Power of Attorney. These are the people who will step into your shoes and make decisions that profoundly affect your life, finances, and wellbeing.
Take your time with this decision. Consider not just who you trust, but who has the capability, willingness, and understanding of your values to act in your best interests. Think about practical arrangements. Single or multiple attorneys? Joint or joint and several decision-making? And don't forget the vital safety net of replacement attorneys.
Here's the thing. Creating an LPA is an act of foresight and care, for yourself and for your loved ones. Without an LPA, if you lose capacity, your family faces the stress and expense of Court of Protection proceedings just to get authority to help you. With a well-thought-out LPA and carefully chosen attorneys, you ensure that the right people can make decisions you would be comfortable with, at a time when you can't make those decisions yourself.
The choice of attorneys is deeply personal. There's no single right answer. The right attorneys for you are those you trust, who understand your values, and who will act in your best interests with the combination of compassion, wisdom, and capability that your unique circumstances require.
If you're ready to create your LPA and have thought carefully about who should act as your attorneys, Keystone Estate Planning can help you complete the process simply and affordably, with expert support every step of the way.
About the Author
Our team of experienced estate planning professionals is dedicated to helping families across the UK secure their future with expert legal guidance and support.
Frequently Asked Questions
How many attorneys should I appoint?
There's no right number, but appointing at least two attorneys acting jointly and severally gives you flexibility and continuity if one can't act. Many people appoint 2-3 attorneys plus at least one replacement attorney. Think about your circumstances. If you have several capable, trustworthy people available, appointing multiple attorneys provides built-in oversight and backup.
Can I appoint different attorneys for Property and Financial Affairs versus Health and Welfare?
Yes, absolutely. Many people choose different attorneys for each type of LPA because they require different skills and relationships. For example, you might appoint your financially astute sibling for financial matters whilst your spouse handles healthcare decisions because they know your wishes most intimately.
What happens if my attorneys can't agree on a decision?
If your attorneys act jointly (must agree on everything) and can't reach agreement, the matter may need to be referred to the Court of Protection. This is one reason why "jointly and severally" arrangements are often preferred. They allow each attorney to make decisions independently, reducing the risk of deadlock. However, if you specifically want shared decision-making for important matters, joint arrangements provide important safeguards despite this risk.
Can I appoint someone who lives abroad?
Yes, there's no legal requirement for attorneys to live in the UK. However, practical considerations matter. If decisions need to be made quickly or documents need signing, distance can be a problem. If you want to appoint someone abroad, consider appointing them jointly and severally with someone in the UK, so either can act as circumstances require.
Do I have to tell my family who I've chosen as attorneys?
Legally, you don't have to tell anyone except the people you're appointing (who must agree to act). However, transparency often prevents hurt feelings and conflict later. Consider discussing your choices with close family and explaining your reasoning. This can prevent disputes when the LPA needs to be used. That said, if family relationships are difficult or you fear pressure to change your choices, you may prefer discretion.
Should I appoint a solicitor as my attorney?
Professional attorneys make sense in certain situations. If you have complex affairs, lack suitable family or friends, want independent expertise, or have family conflicts, they can be a good choice. They're particularly useful for Property and Financial Affairs LPAs where professional financial management is valuable. However, professional attorneys charge for their services, and they lack personal knowledge of you, which is crucial for Health and Welfare decisions. Many people use a mixed approach, for example a solicitor and spouse acting jointly and severally for financial matters.
What's the difference between a "replacement" attorney and an additional attorney?
Replacement attorneys (also called successor attorneys) only step in when an original attorney can no longer act, due to death, loss of capacity, bankruptcy, or resignation. They don't act alongside your original attorneys. In contrast, if you appoint multiple "original" attorneys, they all act from the start (either jointly or jointly and severally, depending on your instructions). Replacement attorneys provide a crucial safety net, ensuring continuity if something happens to your original attorneys.
Can I change my attorneys after registering my LPA?
Once an LPA is registered, you can't simply amend it. However, whilst you have capacity, you can revoke (cancel) the entire LPA and create a new one with different attorneys. You must formally notify the Office of the Public Guardian and anyone named in the LPA. If you've lost capacity, you can't change your attorneys. The Court of Protection would need to become involved if there are problems, which is why choosing carefully at the outset is so important.
What if I don't have anyone suitable to appoint as attorney?
If you genuinely have no suitable family, friends, or trusted advisors, consider professional attorneys (solicitors who specialise in this), think more broadly about acquaintances, colleagues, or advisors you trust, or approach organisations like the Office of the Public Guardian for guidance. As a last resort, if you lose capacity without an LPA, the Court of Protection can appoint a deputy (often a professional) to make decisions for you, though this is more expensive and restrictive than an LPA.
Do my attorneys need special legal knowledge?
No, attorneys don't need legal expertise. They need trustworthiness, sound judgement, and understanding of your wishes. The law provides clear guidelines about attorneys' duties, and they can (and should) seek professional advice when making complex decisions. What matters most is that they know you, understand your values, and are willing to act responsibly on your behalf. Practical capability and willingness to seek help when needed matter more than existing legal knowledge.
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