Once you’ve decided to set up a LPA, you’ll need to think about who you’re going to choose as an attorney.
What is an attorney?
This is someone who is appointed to make decisions on behalf of another person concerning either their property and financial affairs, health and welfare, or both. They must agree to take on the role.
Who can be your attorney?
The person you pick for an attorney must be over 18 years old. You could choose:
– Your husband, wife or partner
– A relative – son, daughter, brother or sister
– A friend
– A professional, such as a solicitor or family doctor
However, they must have mental capacity themselves to make decisions. You also cannot choose someone as a property and financial affairs attorney if they are subject to a Debt Relief Order or are bankrupt.
Choosing someone to be an attorney – what to ask yourself
Do you trust them?
This is probably one of the most important factors to consider. You need to have the belief and the trust that that they will continue to act in your best interests when you are unable to do it yourself. This can sometimes boil down to an issue around how well you know them, but even that is not necessarily a good indicator of whether they can manage the responsibility of a Power of Attorney. For example, if one of your children – who you’ll have known their whole life – is not especially good at managing money, you may want to ensure that the others in your family have finance and property LPA set up but not them.
Can they look after their own affairs?
As mentioned above, there’s no point giving a relative or friend the responsibility of managing your finances or property if they are not great at looking after their own affairs. They need to be able to juggle their own life and all that entails plus all the workings of your life, so it’s worth thinking about whether your potential attorney can do that.
Are you happy for them to make decisions for you?
The job of an attorney is to look after your best interests and make decisions for you once you have lost mental capacity (or before if you have stipulated this on your Property & Finance LPA). Whether they are an attorney for finance and property, health and welfare or both, it’s vital that you recognise that once the LPA comes into effect, they will be making important decisions on issues such as how your money is spent, what happens to where you live and how you are cared for. If, for any reason, you really don’t like the idea of someone making decisions for you in these areas, you need to reconsider the person you have in mind as an attorney.
How many attorneys can you appoint?
There is no limit on the number of attorneys you can have and it generally depends 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.
How attorneys work together – jointly v severally
If you have appointed more than one attorney, you can decide whether you want them to act jointly or jointly and severally. There are advantages and disadvantages of each option.
Attorneys that act jointly…
…must all agree to any decision made by them. This means that if they have to make a decision, they must all be available to sign the documents. The advantage of this is that the responsibility of making a decision does not fall on just one person. The disadvantage is that waiting for everyone to sign off on a decision can sometimes make the process more drawn out, especially if they cannot agree. You would also need to ensure that you have appointed replacement attorneys (see below) because if you have not done this and one attorney dies, steps down or becomes bankrupt, the LPA is terminated.
Attorneys that act jointly and severally…
… can make a decision on their own or with the agreement of the other attorneys. This means only one of the attorneys needs to be available to sign off on a decision, which can make the process speedier. However, there is also the risk that one attorney could be making all the decisions, and potentially abusing their position of power, because they don’t have to answer to any of the other attorneys.
Attorneys that act jointly in respect of some matters and jointly and severally in respect of others…
…means that their ability to make decisions can be limited depending on what the particular decision is. For example, decisions around the sale of a property may be made jointly, while decisions around daily financial decisions such as managing bank accounts could be jointly and severally.
Replacement attorneys
It’s a good idea to pick replacement attorneys at the same time as when you’re picking your main attorneys for your LPA. Their role is to step in if one of your main attorneys can no longer act for you. This could be because:
– They have died
– They have got divorced from the donor or ended their civil partnership.
– They have lost their mental capacity
– They have decided to stop being an attorney – sometimes called ‘disclaiming’ or ‘revoking’ an attorneyship.
– They have become bankrupt or subject to a debt relief order – this only applies to property and financial affairs LPAs.
What powers should you grant your attorneys?
The powers that you give your attorney can vary depending on the whether it’s a finance and property LPA or a health and welfare LPA. You may stipulate within each LPA what they can and can’t do, or whether they can act, but only in certain circumstances.
These restrictions and conditions need to be laid out clearly so that it is obvious against requests that are more like guidance. Restrictions and conditions are binding and can only be overturned by the court, while guidance is not. However, your attorneys will need to ensure that they are still acting in your best interests if they choose to ignore your guidance.
Ideally, you will trust the person (or people) you pick to be your attorney so you shouldn’t have to name too many specific restrictions.
Reporting a concern about an attorney – when and how to report
If you’re worried that an attorney or deputy is not acting in an appropriate manner, you can report them to the Office of the Public Guardian. They have a Compliance and Regulation Unit that will handle issues relating to things such as financial abuse. You can call them on 0300 456 0300 or email opg.safeguardingunit@publicguardian.gsi.gov.uk
Signs of financial abuse
There are some signs that might show financial abuse is taking place.
• A change in living conditions.
• Selling possessions.
• Being unable to pay bills, or an unexplained lack of money.
• Money being taken out of an account without a reason.
• Financial documents being lost without a reason.
• Someone being cut off from family, friends or their social network.
• The carer having more money to spend on things like clothes, travel or accommodation.
• Sudden changes to a bank account or how someone uses it.
• New, recent authorised signers on a client or donor’s account card.
• Money being taken without permission from the adult at risk’s ATM card.
• Changes in how the ATM card is being used (such as more frequently or from different locations).
• Sudden or unexpected changes to someone’s will or other financial documents.
You should not delay when sharing any concerns about the potential abuse or misuse of a LPA.
Once reported, the Office of the Public Guardian have the power to investigate the actions of an attorney or deputy, make a report and take action against them. They can also refer any concerns to the Police.
In instances where someone is concerned about the abuse of a Health and Welfare LPA, they may also need to contact the Adult Protection Unit (you can find details of this by contacting your local social services department).
Need help filling out Lasting Power of Attorney documents? Unforgettable can help! We’ve created an online questionnaire to help you fill out your LPA and cover off any issues related specifically to dementia and the challenges it can present. Click here for more information.
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