Choosing someone to look after your affairs

An excerpt from Lawpack's Power of Attorney Kit.

If you're worried that your affairs may be left in limbo if you get ill or have an accident, then you can use a Lasting Power of Attorney (LPA) to grant someone the power to look after your affairs.

Alternatively, if you feel that a close relative of yours is getting frail or there is a chance that they may become mentally incapable in the future, then you may think it's wise that your relative gives you the authority to pay bills and sell assets on their behalf should they become unfit to do so.

Find out more about the different types of Power of Attorney available.

When you're making a LPA (or a Continuing or Welfare Power of Attorney in Scotland), you need to choose who will look after you affairs in the future, if you're not able to do so.

The person you select will be called an 'Attorney'. But who do you choose to be an Attorney and can you choose more than one person?

How many Attorneys can I appoint?

You (called the 'Donor' in legal terms) can appoint one person to look after your affairs or you can choose more than one. Careful thought should be given when you're choosing your Attorney, as they will be dealing closely with your personal affairs.

Also, do consider who would be a practical choice of Attorney. Someone living abroad, for example, wouldn't be able to deal with your affairs that easily.

If you have more than one Attorney, you can require the Attorneys to act ‘jointly’, or ‘jointly and severally’, or jointly for some matters and jointly and severally for others.

If you appoint your Attorneys to act jointly, it means that they must all make any decisions together.

If you appoint your Attorneys to act jointly and severally, this means that they can make their decisions together but may also make their decisions separate from one another and need not consult each other about those decisions.

If you appoint your Attorneys to act jointly in respect of some matters and jointly and severally for others, then for those matters that you said they must act jointly they must agree but for the others they can act together or separately.

Who can be my Attorney?

Many people appoint family members to be their Attorney(s). For example, you can appoint your spouse as your Attorney, together with your children, with an informal understanding that your children won't act while your spouse is able to do so.

But, by law, your Attorney must be over 18.

Also, if you're making a LPA Property and Financial Affairs (or a Continuing or Welfare Power of Attorney in Scotland), the Attorney cannot be an undischarged bankrupt or an interim bankrupt and if they are made bankrupt, they will cease to be an Attorney (if they are the only Attorney, the Power will be automatically revoked).

This bankruptcy restriction doesn't apply when you’re making a LPA Health and Welfare.

Can I replace an Attorney?

You can appoint a person to replace your Attorney(s) and the replacement will occur if the following happens:

  1. The Attorney refuses to act by 'disclaiming' the appointment (i.e. they have told the Office of Public Guardian that they no longer wish to act as an Attorney).

  2. They die or are made bankrupt (bankruptcy is only applicable to a LPA Property and Financial Affairs and a Continuing or Welfare Power of Attorney in Scotland).

  3. They are your spouse (or civil partner) and you get divorced and there are no other Attorneys (or the Attorneys can only act jointly) and no replacement Attorney.

  4. The Attorney doesn't have 'capacity' to exercise the Power. (The Attorney can only take control of a certain matter if you don't have the capacity to make a decision).

You don't have to appoint a replacement but if you don't, then a LPA will end when the Attorney can no longer act or any of the above prevent them from doing so.

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Published on: October 25, 2010

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