When establishing your lasting power of attorney (LPA), you’ll be confronted with the question: who do you want your attorney to be? This is a big decision, as your attorney can act for you and make decisions on your behalf.
This guide will walk you through the responsibilities of an attorney and help you understand what you should look for when appointing someone.
What Is an Attorney?
Your attorney plays a vital role in your LPA. They have specific duties that relate to the types of LPA you have in place:
- LPA for financial decisions – This type of LPA places your attorney in charge of all your financial affairs. You can use it while you still have full mental capacity, or when you establish it, you can specify that it only begins if you cannot make decisions for yourself. It covers aspects of your finances such as paying mortgages, bills and investing, and you can choose if your attorney can make all decisions for you or restrict what they can do.
- LPA for health and care decisions – This covers any health-based choices you may need to make if you lose mental capacity. Unlike LPAs for financial decisions, your attorney can only decide on your health and care when you cannot do so yourself. It covers where you should live, your diet, who you should see, and your medical care.
Your attorneys can also give gifts on your behalf if you wish. For example, they can provide one of your loved ones a present for their birthday, wedding, or anniversary or donate to a charity you previously donated to. The gift they make must be of reasonable value compared to everything else that you own.
When creating your LPA, you can include specific instructions for your attorneys to follow and any preferences you’d like them to account for when making decisions. This could be anything from the type of stocks you would like to invest in or whether you would like to live in a city or the countryside.
The Responsibilities of an Attorney
Your attorney has several responsibilities when making health or financial decisions on your behalf. As well as considering the decision itself, for example, paying a bill, they must always act in your best interests, and consider your past wishes and feelings.
If mental capacity is reduced, they must also keep you involved as much as possible. If you were previously unwell and regained mental capacity, your attorney should consider delaying the decision until you can have input.
Your attorney can also claim expenses from your assets for their role. However, these expenses only cover things they need to carry out their role, such as travel costs. They won’t be able to make any claims for their time in the role unless they are professionals.
Choosing an Attorney
When selecting an attorney, choosing someone trustworthy, reliable, and capable of making decisions on your behalf is essential. Consider the person’s ability to manage their own finances, make decisions about their own well-being or the well-being of others, and if they are available to serve in the role in the future. Being an attorney is a significant responsibility, so ask yourself if they are well organised and if they have the time to be able to help you.
It is also beneficial to talk with the person you want to appoint as your attorney to ensure they are comfortable with the responsibility and understand your wishes and preferences. Attorneys sometimes need to make vital medical decisions, which can be a lot of pressure. Usually, family members or close friends are chosen as attorneys, with younger individuals sometimes being more suitable for a health and welfare LPA.
However, you can also choose a professional such as a solicitor or an accountant, to be your attorney. Although this can help avoid conflicts within your family, it can also be expensive, so discuss the costs and what will be involved before making a decision.
Selecting Multiple Attorneys
You can choose multiple attorneys to manage your affairs and make decisions together or separately – also known as jointly and severally. Having two or more attorneys can help your loved ones share the decisions and bring different points of view to challenging choices. There are several ways your attorneys can make decisions on your behalf:
- Jointly – Your attorneys will always act together, so each one must sign all documents and agree to all decisions.
- Severally – Attorneys can act both together and independently.
- Jointly and severally – Your attorneys must agree on specific decisions, such as selling property or approving medical treatment. However, they can act independently for minor choices such as diet or paying bills.
Problems and Issues
Your attorneys should make decisions with your best interests in mind. However, in some cases, they can abuse their power and take advantage of people. If you still have mental capacity and you or your loved ones have concerns about one of your attorneys, you can cancel the LPA and stop them from making any more decisions on your behalf.
You can also raise your concerns with the Office of the Public Guardian (OPG), which is responsible for investigating allegations and disputes over LPAs. Additionally, it can escalate cases to the police and social services if appropriate.
Choosing the right attorney for your needs takes careful consideration. It’s vital to remember that they will have significant control over your affairs if you cannot make them yourself, so take plenty of time to decide who is reliable, trustworthy, and capable of handling your needs.
Ready to start establishing your LPA? Get in touch with The Planning Bee today to discuss your needs and wants with our expert team of paralegals.