Lasting Powers of Attorney – A little guidance on Joint and Reserve Attorneys

You don’t need a solicitor to make a Lasting Power of Attorney (LPA); forms and guidance can be found here. Indeed, the Government encourages a cost effective do it yourself approach to “routine” legal documents. This blog will discuss some tips for creating a successful LPA yourself in relation to selecting attorneys and reserve attorneys.

By way of reminder, an LPA is a legal document that is used if you lose your mental capacity.

There are two types of LPA:

1. LPA for property and financial affairs – you appoint a person or persons to make decisions such as selling your home, managing your bank and building society accounts, claiming financial allowances (including pensions and benefits) and paying your bills; and
2. LPA for health and welfare – appointing a person or persons to make decisions on your behalf on matters such as refusing or giving consent to health care, including life-sustaining treatment, your daily well-being and living situation.

The ‘attorney’ appointed to act on your behalf could be your partner or spouse, your child or children, your close friend, your relative, and so on.

Remember an attorney can no longer act on your behalf if one or more of the following five “risk factors” apply:

1. They no longer want to act as your attorney;
2. They lose mental capacity;
3. They were your spouse or civil partner but your relationship has legally ended since your LPA was registered;
4. They become bankrupt or are subject to a debt relief order (applies to property and financial LPAs only); or
5. They have died.

Attorney duties

You should consider appointing at least two attorneys whom you trust to act in your best interests. It is important to note that the duty is more of a “chore” than a “favour” . (See our earlier blog on the topic here.)

There is no maximum number of attorneys that you can appoint, though it’s unusual to see more than two appointed. Where more than one attorney is appointed an important decision needs to be made about the nature of the other “joint” power. There are three options:

1. Jointly (rarely advisable) – every decision needs to be made jointly and unanimously. This can be cumbersome. But the principal drawback is that if one of the attorneys dies or loses capacity themselves (see the “risk factors” above) the LPA becomes null and void;
2. Jointly and severally (preferred) – this means attorneys can make decisions together or just one of them can make a decision on their own. This mitigates the “risk factors” because the surviving attorney or attorneys can continue to make decisions on your behalf and your LPA will continue to work. This is the option most people choose; and
3. Jointly for some decisions, jointly and severally for other decisions – you (a ‘donor’) can specify an issue important to them (often the sale of the family home) on which agreement of all attorneys is required.

Reducing risk

You might select at least one reserve attorney as a “backup”. It’s important to note that the same five “risk factors” that apply to an original attorney would also apply to a reserve attorney.

A reserve attorney’s duty only commences when one of your original attorneys can no longer make decisions on your behalf. Reserve attorneys cannot replace an attorney who has already been substituted for an original attorney, nor can they act temporarily when an original attorney is still able to act.

Collecting all the signatures and registering your LPA

The process for making and registering your LPA is lengthy. The signing and dating must be in the right order, which can be tricky considering the number of people required to complete the form – the donor, attorneys, any reserve attorneys, a certificate provider and witnesses. The more attorneys you appoint, the more signatures required!

Once your LPA has been submitted to the Office of the Public Guardian for registration, it can take anything between 8 and10 weeks for registration to complete. For guidance on making an LPA, read our earlier blog on the subject here.

My last tip for the unwary is this: once you have registered your LPA you cannot make any amendments to it. So, if you want to appoint an additional attorney, say, then you will need a formal deed of revocation and then to complete and register a brand new LPA.

Further information

For further information about LPAs, please contact any member of our private client team.