Choosing your attorneys

What you are actually asking of them

It is easy to treat naming an attorney as an honour to be handed out. It is not. It is a job, and it can run for years — paying bills, dealing with pensions and benefits, arguing with a utility company, sitting in a meeting about a care home, possibly selling a house.

Attorneys have real duties. They must act in your best interests, help you make your own decisions for as long as you can, keep your money separate from theirs, and keep records. The Office of the Public Guardian supervises them and can investigate if something looks wrong.

So the question is not who would be flattered. It is who would still be doing this carefully in five years' time, when it has become tedious and nobody is watching.

Who can be an attorney

Anybody aged 18 or over who has the mental capacity to act. Most people choose a spouse or partner, an adult child, a sibling or a close friend. You can appoint one person or several.

For a Property and Financial Affairs LPA there is one extra restriction: an attorney must not be bankrupt or subject to a debt relief order, and if they become so after appointment they cease to be able to act for your finances. It does not affect a Health and Welfare appointment.

An attorney can also be a beneficiary of your Will — that is entirely normal, and usually unavoidable when the obvious person is your husband, wife or child. You can also appoint a professional to act, who will charge for doing so.

Jointly, or jointly and severally

If you appoint more than one attorney, you have to say how they make decisions, and there are three ways.

Jointly and severally means any one of them can act on their own, without waiting for the others. It is the most practical arrangement day to day — one can pay a bill or speak to your bank while another is away or unwell — and it is what most people choose.

Jointly means they must all agree on everything, and nothing can be done unless every attorney signs. It is the tightest control, but it is slow, and it carries a trap: if one attorney dies or has to stand down, the whole appointment comes to an end unless you have named a replacement. The others do not simply carry on. By the time that is discovered, it is often too late to make a new LPA.

The third option is some decisions together and some apart — each attorney can act alone on most matters, but on others, such as financial decisions, they have to act together. It needs careful wording to be accepted, so tell us which decisions should need everybody and we will set it out and check it.

Replacement attorneys

A replacement attorney does nothing at all unless one of your original attorneys can no longer act — because they have died, lost capacity, or stood down. Then they step in.

It is the quietest and most useful part of the form. It is also what rescues a joint appointment from the trap above, which is why naming at least one is worth the two minutes it takes.

There are limits. A replacement cannot appoint a replacement of their own, and how replacements slot into a joint appointment depends on how the appointment was set up — which is one of the things worth getting right on the form rather than assuming.

What makes a poor choice

Appointing all four of your children, jointly, to keep the peace. It reads as fair and works as a deadlock: one of them lives abroad, one of them is unwell, and nothing can be signed.

Choosing somebody who cannot say no. An attorney's hardest moment is refusing a relative who wants money from your account, and the whole safeguard rests on their willingness to be unpopular.

Choosing somebody in financial difficulty of their own. That is not a judgement about their character; it is that the temptation and the scrutiny are both real, and for a finance LPA bankruptcy ends the appointment anyway.

Choosing somebody who cannot practically do it — living far away with no head for paperwork — or choosing only people of your own age and health, with nobody named behind them.

And appointing somebody without asking them. An attorney who first learns of the job when they are handed it usually does it badly.

Talk to them before you sign

Tell the people you are naming what you want. Whether you would rather stay at home as long as possible, what you feel about care, how you would want money spent on you rather than saved for anybody else. Attorneys act in your best interests, and they can only do that if they know what you actually think.

Tell them where the documents are, and tell them the LPA has to be registered before it can be used.

You can also name people to be told when the LPA is registered — an optional safeguard that gives somebody outside the arrangement the chance to raise a concern before it takes effect.