About this blog

This blog relates to Lasting Powers of Attorney (LPA) in England and Wales. In this blog, the phrases Lasting Power of Attorney and LPA will be used interchangeably.

What is an Attorney?

An Attorney is a person named on a Lasting Power of Attorney. Their main role is to look after the Donor’s (the person to whom the LPA belongs) affairs and make decisions on the Donor’s behalf if the Donor is unable to.

There are, however, differences in when Attorneys can act. The Property and Financial Affairs LPA gives Attorneys the option to act either as soon as the LPA is registered or only if the Donor loses mental capacity after registration. In the Health and Welfare LPA, Attorneys can only act if the Donor loses capacity.

Your Attorney is single-handedly the most important person on your LPA because they will make decisions on your behalf if you’re not able to. An Attorney can be involved in matters such as selling or remortgaging your home and managing your health matters, such as consenting to or refusing medical treatments. However, it’s important to note that an Attorney can only consent to or refuse medical treatment if the Donor doesn’t have the mental capacity to make this decision for themselves. In addition, there are limits to the medical decisions an Attorney can make on behalf of the Donor. For example, an Attorney cannot make a medical decision that a healthcare professional deems unsafe or clinically inappropriate. You can choose how involved you want your Attorneys to be. Whatever decisions an Attorney makes, they must make them in your best interests.

Who can be an Attorney?

Anyone aged eighteen or over who has mental capacity can be an Attorney, subject to certain legal restrictions. You can appoint a family member as your Attorney; however, an Attorney doesn’t have to be a family member. It can be a friend, a colleague or even a professional, such as a solicitor. It is, however, important that you choose someone you trust and know has your best interest at heart. Your Attorneys can live anywhere in the world. As long as you have the mental capacity to do so, you can remove an Attorney from your Lasting Power of Attorney at any time if you feel they are not reliable or suitable. To do this, you have to send the Office of the Public Guardian a statement called a ‘Partial Deed of Revocation’ along with the original LPA. Attorneys must also be informed of this decision.

Who cannot be an Attorney?

A person under the age of eighteen cannot be an Attorney. If you want your child or children on your LPA, but they are underage, you must wait until they reach eighteen. Before choosing an Attorney, it’s wise to ensure that the Attorney or Attorneys you choose are financially responsible. You cannot appoint an Attorney who is bankrupt or subject to a debt relief order under a Property and Financial Affairs LPA, although they can still act under a Health and Welfare LPA. This is mainly for safeguarding reasons. Just because an Attorney can manage your finances does not mean that they can do so without verification measures. Banks and other organisations can refuse or delay certain requests while undertaking safeguarding and verification checks. Someone who lacks mental capacity cannot serve as an Attorney, even if they had capacity when they were first appointed. If your Attorney loses their mental capacity, you must inform the Office of the Public Guardian as soon as possible so that they can be removed from your LPA.

What Decisions can Attorneys make?

Attorneys can make various decisions. These can include decisions such as whether to move the Donor into a care home or provide care in their own home. However, decisions should only be made when the Donor lacks the capacity to make a particular decision at a particular time. It is therefore vital to make your wishes clear to your Attorneys when setting up an LPA. In addition, it is highly recommended that you choose an Attorney or Attorneys whom you can trust with all your affairs and, essentially, your life. If you want to appoint more than one Attorney, it is equally important that you choose Attorneys who get along and trust each other. When Attorneys don’t get along, this can lead to miscommunication, secrets and bad intentions, which can go against the purpose of your Lasting Power of Attorney. It is therefore important to think long and hard about who you appoint as your Attorney because your quality of life and peace of mind depend on it.

What Decisions can Attorneys not make?

Many people think that an LPA gives an Attorney unrestricted authority, but there are strict legal limits on what Attorneys can and can’t do. Although Attorneys are there to help you make decisions, there are some decisions that they cannot legally make. For example, an Attorney can’t vote on your behalf, even if you ask them to. This is because voting is a personal civic duty. In addition, some decisions require the authority of the Court of Protection, such as your Will. An Attorney cannot make or change your Will. If you lose mental capacity without a Will, only the Court of Protection has the legal authority to authorise a Statutory Will on your behalf. Other decisions that cannot be made without the Court of Protection’s permission include making large gifts on behalf of the Donor, such as transferring assets to family members. Let’s say that the Donor lacks mental capacity and an Attorney gives £20,000 to the Donor’s grandson to help with university fees. This type of gift is not allowed without the approval of the Court of Protection, even if the Attorney believes that this is what the Donor would have wanted. However, Attorneys are allowed to make sensible, occasional gifts on behalf of the Donor, only made to the Donor’s family or to a verified charity. Any gifts made on behalf of the Donor must always be reasonable and in the best interests of the Donor.

How Attorneys Can Make Decisions

You can have as many Attorneys and replacement Attorneys as you would like. It is important to note that replacement Attorneys can only act when the main Attorneys are unable to continue acting for a recognised reason.

There are different ways Attorneys can act. If you have appointed more than one Attorney, they can be appointed to act ‘Jointly’, ‘Jointly & Severally’ or ‘Jointly for some decisions and Jointly & Severally for other decisions’’. You can also appoint one Attorney. If you only have one Attorney, they don’t have to consult with other Attorneys, although they would still have to obtain your consent before making decisions.

Jointly & Severally

Jointly & Severally is the most practical and popular option. Attorneys who act Jointly & Severally can make decisions independently or collectively and don’t generally have to consult or agree with each other when making decisions. They still have to follow the Donor’s wishes and instructions, provided that this is in the Donor’s best interests and the Donor has mental capacity. If one of the Attorneys passes away or an Attorney no longer wants to act, the remaining Attorneys can continue acting. This option is suitable for Attorneys who generally get along and trust each other.

Jointly

Attorneys who are appointed Jointly must unanimously agree on every decision. For example, if you have three Attorneys and two of them want to sell your home, but the third Attorney doesn’t, your home cannot be sold. Unlike the Jointly & Severally option, if one of your Attorneys passes away or is unable to continue acting as your Attorney, your Lasting Power of Attorney will become invalid.

Jointly for some decisions and Jointly & Severally for others

This option allows Attorneys the opportunity to act in different ways. For example, Attorneys can act Jointly & Severally in decisions such as the Donor’s day-to-day care, but must act Jointly in decisions such as selling the Donor’s home. This gives the Donor the option to choose which decisions they want Attorneys to make together and which decisions they can make independently. What decisions Attorneys make depend on different factors, such as their flexibility and practicality.

Can I appoint different Attorneys for my Health & Welfare LPA and my Property & Financial Affairs LPA?

Yes, it is possible to appoint different Attorneys and replacement Attorneys for your LPAs. The two LPAs serve different purposes and can be used at different times after registration (Understanding the Difference Between Property and Financial Affairs and Health and Welfare Lasting Power of Attorney (LPA) – LPA Assist). For example, after registration, the Property and Financial Affairs LPA can be used either before or after the Donor has lost mental capacity. The Health & Welfare LPA can only be used after the Donor has lost mental capacity. Because both LPAs serve different purposes, some Attorneys prefer to act as an Attorney in only one LPA. An Attorney who is confident in financial and estate-related matters might not be confident in making serious health decisions. Similarly, another Attorney might prefer to be involved in the Donor’s financial decisions and stay away from all health-related matters. Having different Attorneys across both LPAs can also reduce the burden on Attorneys. However, in many cases, the same Attorneys are appointed across both LPAs.

Next steps

It is important to keep in mind that a Lasting Power of Attorney doesn’t give an Attorney the authority to make decisions as they like. Attorneys should always consult the Donor about the decisions they make and the actions they take. In cases where the Donor lacks mental capacity, the Attorneys should make decisions that are in the best interests of the Donor. If Attorneys are unsure whether the Donor has lost mental capacity, they can assess the Donor in accordance with the Mental Capacity Act principles. If the Donor’s mental capacity is a complex matter, a medical professional might be consulted. We advise that you speak with a legal expert or a solicitor to ensure that you know which decisions are legally allowed and which are not. A Power of Attorney is a legal document and has legal consequences if misused.

LPA Assist is more than happy to answer your general queries about Lasting Powers of Attorney.