The Role of an Attorney: Why Choosing the Right People Really Matters

When making a Lasting Power of Attorney, it can be tempting to think the most important part is simply completing the paperwork. In reality, one of the biggest decisions you will make is choosing the people you appoint as your attorneys.

An attorney may eventually be responsible for making some of the most personal and important decisions of your life. It is therefore not an appointment that should be made automatically because somebody is your eldest child, closest relative or lifelong friend.

The right question is not simply, "Who am I closest to?"

It is: "Who do I trust to make the right decisions for me, even when those decisions may be difficult?"

What is a Lasting Power of Attorney?

A Lasting Power of Attorney, commonly known as an LPA, is a legal document that allows you, the donor, to appoint one or more people to help you make decisions or to make decisions on your behalf.

In England and Wales, there are two types of LPA.

Property and Financial Affairs LPA

A Property and Financial Affairs LPA can give your attorneys authority to deal with matters such as:

• Managing bank and building society accounts
• Paying household bills
• Collecting pensions and benefits
• Managing savings and investments
• Dealing with tax matters
• Buying or selling property
• Paying for care and other essential services

Once registered, a Property and Financial Affairs LPA can be used while you still have mental capacity, but only with your permission. This can be particularly helpful if illness, disability or time spent abroad makes managing your finances difficult.

Health and Welfare LPA

A Health and Welfare LPA can cover decisions about:

• Your medical treatment
• Where you live
• Your daily care and routine
• The support you receive
• Moving into residential care
• Life-sustaining treatment, if you give your attorneys this authority

Unlike the financial LPA, a Health and Welfare LPA can only be used when you are unable to make the particular decision yourself. Further information about both types of LPA is available from the Office of the Public Guardian.

What responsibilities does an attorney have?

Being an attorney is not simply a title. It carries legal duties and significant responsibility.

Attorneys must act in the donor's best interests. They should support the donor to make their own decisions whenever possible rather than taking control simply because it is more convenient.

They must consider the donor's wishes, beliefs and values. They should also follow any legally binding instructions included within the LPA.

A financial attorney must keep the donor's money separate from their own, maintain appropriate records and be able to explain the decisions they have made. They cannot use their position to benefit themselves and their ability to make gifts using the donor's money is strictly limited.

The Office of the Public Guardian can investigate concerns about how an attorney is behaving. Attorneys may be asked to produce bank statements, receipts and other evidence showing that their decisions were made properly and in the donor's best interests.

This is why attorneys need to understand that accepting the appointment involves accountability as well as trust.

What qualities should you look for?

Your attorney does not have to be a financial expert or legal professional. However, they should be honest, reliable and willing to take their responsibilities seriously.

Think about whether the person:

• Understands your wishes and values
• Can remain calm when difficult decisions are required
• Will listen to medical, financial and professional advice
• Is organised enough to manage paperwork and maintain records
• Can separate their own opinions from what is best for you
• Will communicate properly with family members and professionals
• Has the time and willingness to carry out the role
• Can be trusted completely with confidential information and money

For a Property and Financial Affairs LPA, somebody who is careful, organised and financially responsible may be most suitable.

For a Health and Welfare LPA, you may want somebody who understands your views about care, dignity, independence and medical treatment, and who will be confident enough to speak up for you.

The same people do not have to be appointed under both documents.

Should you appoint more than one attorney?

You can appoint one attorney or several. Where more than one person is appointed, you must decide how they will act.

Attorneys acting jointly and severally can usually make decisions independently or together. This offers flexibility and means the LPA can normally continue if one attorney is unable to act.

Attorneys appointed jointly must make decisions together. Although this can provide additional checks, it may also cause practical problems. If one attorney dies, loses capacity or can no longer act, the remaining attorneys may be unable to continue unless the document has been carefully structured.

You can also appoint replacement attorneys who step in if an original attorney can no longer act. This provides valuable long-term protection.

Consider how your chosen attorneys get along. Appointing children who have a difficult relationship may result in disagreement, delay and additional stress at precisely the time your family needs cooperation.

Have the conversation before making the appointment

Never assume that somebody will be willing or able to act.

Talk to your proposed attorneys before naming them. Explain what the role may involve, the decisions they could face and the responsibilities they will carry. Make sure they understand your preferences and give them the opportunity to ask questions.

You may also wish to prepare a separate guidance document explaining your routines, beliefs, priorities and hopes for the future. While informal guidance may not be legally binding, it can help your attorneys understand the person behind the paperwork.

Do not leave it until it is too late

An LPA must be made while you have the mental capacity to understand and approve it. If capacity has already been lost, relatives cannot simply create one for you. They may need to apply to the Court of Protection for a deputyship order, which can be slower, more expensive and more restrictive.

A Lasting Power of Attorney gives you a voice when you may no longer be able to communicate your decisions yourself, but its strength depends greatly on the people you choose.

Choose people who will protect your independence, respect your wishes and always remember that they are managing your life, not taking it over.

The real question is: Who would you trust to stand in your shoes and make the decisions you would have made for yourself?

This article provides general information about Lasting Powers of Attorney in England and Wales. It is not individual legal, financial or medical advice. The suitability of an LPA and attorney appointments will depend on personal circumstances.