Lasting Powers of Attorney: Who should I appoint to be my attorney(s)?

10th July 2023

A Lasting Power of Attorney (‘LPA’) is a legal document that allows you to appoint one or more people over the age of 18 (known as your ‘attorneys’), to make decisions on your behalf. You can also name replacement attorneys who can step in if one of your original attorneys becomes unable or unwilling to act.

There are two types of LPA: one which allows you to decide who should manage your financial affairs and one where you appoint people to make decisions about your health and care if you are no longer in a position to do so yourself. If you do not make an LPA and you lose mental capacity, your family or friends would usually need to apply to the Court of Protection for a deputy to be appointed to act on your behalf. This can be expensive and time consuming and requires the on-going involvement of the courts, sometimes for years to come.

Carefully consider who to appoint

A valid, registered LPA gives your attorneys a great deal of control over your affairs. For this reason, your choice of attorney should be carefully considered. For some people, it can be difficult finding someone suitable or trustworthy to appoint. You may decide that different people are best placed to make decisions for your financial affairs and health and welfare decisions. It is therefore important to note that you do not need to appoint the same people as your attorneys under both types of LPA.

There are currently over 6 million people who have made LPAs in England & Wales – in most cases appointing family members or close friends as their attorneys. The role of an attorney can be complex, and although your family and close friends may have the best intentions, being an attorney can be difficult and not everyone has the necessary skills.

Timing is also an important factor to consider in the sense that years may pass between appointing an attorney and their services being required. It is therefore sensible to choose someone who is younger than you, or at least the same age – but ideally not older, to act as your attorney, as an older person may not be in a position to take up the role when called upon. If there is a joint appointment of attorneys then it is important that your attorneys get along with each other so that decisions can be made amicably. Problems may also arise should your attorneys live overseas, as financial institutions can require ‘wet’ signatures (not digital signatures) on instruction forms or other documents, which would then have to be sent by post. Some decisions may also require urgent attention, especially for health and welfare LPAs and any time differences and distance could lead to a problematic delay.

Appointing a professional power of attorney

If you foresee any future issues arising from appointing one or more family members or close friends as your attorney(s), you might consider it appropriate to appoint a professional attorney instead.

A solicitor can be appointed to act as a professional attorney. Professional attorneys have extensive knowledge and experience in these matters, and can represent a practical alternative, as they are independent of the family. Consideration should also be given to the complexity of your assets and personal arrangements. If you have multiple asset types, or assets held abroad in different jurisdictions for example, a professional attorney might be better able to deal with the sorts of issues that sometimes arise in these circumstances. This benefit could be weighed against the inevitable costs of having a professional involved in your affairs and the decision should always be taken after proper thought.

Seek advice

Should you decide not to appoint a professional attorney in your LPAs, your attorneys will still be able to seek advice from specialist solicitors and the Office of the Public Guardian (OPG) on how to perform their duties correctly and they should be encouraged to do so where they do not have all the skills or experience to act without advice.

In addition to LPAs for financial affairs and health, you can also make ‘business’ LPAs. It can be sensible to appoint someone familiar with your business if you own a company, but this may need to be separate from your personal affairs and it is recommended that you obtain legal advice in these circumstances.

How can Blake Morgan help?

The Private Client team at Blake Morgan are specialists with extensive experience in drafting Lasting Powers of Attorney. We can support you through the process of creating your LPAs, as well as providing expert legal advice and guidance on appointing a power of attorney and placing any necessary limitations regarding the decisions your attorney(s) can make on your behalf. We can also advise on specific instructions and preferences to include in your LPAs to help guide your attorney(s) to act in accordance with your wishes and with a focus on your best interests.

If you need legal advice on setting up a Power of Attorney

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