What should
be considered
when appointing
attorneys?
Making an LPA is an important decision. Great consideration should be given to how many attorneys are needed,
who is going to act, and how they will make decisions; after all these are the people who will be responsible for
making decisions on the donor’s behalf and looking after their best interests.
Ultimately the decision on who to appoint as an attorney is the donor’s alone, and the Mental Capacity Act 2005 Code of Practice makes this
clear:
“7.8 A donor should think carefully before choosing someone to be their attorney. An attorney should be someone who is
trustworthy, competent and reliable. They should have the skills and ability to carry out the necessary tasks.”
But the drafter must still make sure they can guide the donor through the process.
1. Capacity 2. Complexity
One of the first things to consider are the attorney’s own age
and capacity. An attorney must be over 18 at the time the LPA is
created and must themselves have the capacity to act. For obvious
reasons it is unwise for the donor to appoint someone much older
than themselves, or whose capacity is questionable for any reason. This is more relevant to P&F LPAs. Is the donor’s estate complex?
Do they have a myriad of investments or a property portfolio that
needs to be managed? Maybe they have business interests that
need to be dealt with separately.
When taking instructions for a Property & Financial Affairs LPA the
donor should be made aware that a person who cannot act as an
attorney. If they become bankrupt at any point their appointment
as an attorney will be revoked. This can easily leave an LPA in
jeopardy. The donor would be well advised to think about their
proposed attorney’s own relationship with finances before giving
them authority to manage their own financial affairs. This does not
affect a Health & Welfare LPA.
On the point of capacity, would the attorney be able to make the
decisions they may be asked to make? If the donor of a Health &
Welfare LPA is giving authority to refuse life sustaining treatment
they need to be sure that their chosen attorney would be capable
of making this difficult decision.
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the society of will writers
The donor must consider whether they need to appoint someone
with special skills to manage their assets. This may be a
professional like an accountant to manage their investments, or
even an individual that they know has the appropriate skills and
experience. When considering professional attorneys make sure
to also consider their fees.
This is most true of ‘Business LPAs’ where it is important to the
business that the attorney has knowledge of the business and
preferably experience in it. In some cases, the chosen attorney
may also need have certain qualifications and be subject to the
same regulation as the donor. Take for example the Managing
Partner of a solicitor’s firm; they would only be able to appoint
another suitably qualified solicitor as their attorney to make
decisions regarding the firm.