3. How many?
It’s possible to appoint a sole attorney. The forms have space for
four attorneys and two replacements, but there is no upper limit on
how many attorneys can actually be appointed. That said, it’s never
usually wise to appoint more than four attorneys and the Office of
the Public Guardian (OPG) don’t encourage this.
Regard should be had to whether replacement attorneys are
needed. Who would the donor want to make decisions for them if
any of their first choice of attorneys were unable to? If the donor
is appointing a sole attorney they should absolutely be encouraged
to consider a replacement. If their sole attorney becomes unable to
act then the whole LPA will fail without a replacement.
4. How should they act?
If appointing multiple attorneys, the donor will need to decide how
they will act. There are three options. Jointly, jointly and severally,
and jointly for some decisions but jointly and severally for all
others (the hybrid power).
This is an important decision and needs to be well thought out. The
donor should be made aware of the advantages and pitfalls of each
type of appointment. If they are considering appointing attorneys
to act jointly they especially need to be aware of the effect on their
LPA should any of their attorneys become unable to act.
5. Jointly Owned Property
It is common for donors to appoint their spouse as their sole
attorney. You should note that this can cause an issue if the donor
and their spouse own property together. All jointly owned land
in England & Wales is held on a trust of land, usually with the
joint owners holding the property on trust for themselves. When
transferring the land, a minimum of two trustees are required to
give good receipt of capital monies, overreaching any underlying
beneficial interests.
If one owner has lost capacity and their sole attorney is also the
other owner the attorney cannot give receipt in their capacity as
both owner and attorney; two separate signatures are required. In
such a case the attorney would have to take extra steps to appoint
a co-trustee to act with them under s36(6)(b) of the Trustee Act
1925.
This has covered only what I feel are the main points to think about
when appointing attorneys. There are also factors that have not
been touched upon that will be very personal to each donor, for
example would it be practical to appoint their relative who lives
abroad? Can they afford a professional attorney’s fees? We also
mustn’t overlook the proposed attorneys’ relationship with each
other. It’s important that they get along well enough to make
decisions together. This is even the case when appointing different
attorneys for both types of LPA as there will inevitably be some
overlap for certain decisions.
the society of will writers
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