Who can I choose to be my attorney?
You can choose anyone you want to be your attorney, as long as they are over 18. For a property and affairs LPA, the person you choose cannot be bankrupt. Consider what an attorney has to do before making your choice and choose someone you trust who will act in your best interests.
Lasting power of attorney
Who can be an attorney?
You can choose anyone you want to be your attorney, as long as they are 18 or over. You can have as many attorneys as you wish but it is usual to have between one and four. If you have more than one, you can also say how you want them to work together. See ‘Having multiple attorneys’ below.
For a property and affairs LPA, the person you choose cannot be bankrupt or the subject of a ‘debt relief order’ (which can be used to help someone deal with their debts if they are in financial difficulty).
Choosing an attorney
What should I consider when choosing an attorney?
Your attorney will have very important decisions to make, and a lot of responsibility to make choices that reflect your wishes. You should choose someone who:
- knows you well
- you trust to make these decisions for you
- is reliable and has the skills to carry out the role.
When choosing an attorney, it may also be helpful to:
- think about how well they manage their own finances or make decisions about their own wellbeing or the wellbeing of others
- take into account that your attorney may not be needed to make decisions until some time in the future. Most people choose a family member or a close friend to be their attorney, especially for a health and welfare LPA –someone younger may be appropriate
- talk to the person you want to appoint as your attorney before you make the LPA. You can tell them about your wishes and preferences and you can make sure that they are happy taking on the role.
Can I choose a professional to be my attorney?
You can ask a professional, such as an accountant or solicitor to be your attorney. This is something to think about for a property and affairs LPA if you don’t have anyone you feel happy about choosing or if there are conflicts within your family.
A professional will charge for their time and these charges can vary. Talk to the professional before you make the LPA to understand the costs and what will be involved.
What happens if my attorney can't do their role anymore, or they don't want to?
You can also appoint a replacement attorney. This is a person who you would want to make decisions for you if your first choice of attorney is no longer able or willing to carry out their role.
This is a good idea, and can give you extra reassurance, especially if you are only appointing one person to act as your attorney.
What does an attorney have to do?
Anyone you appoint as an attorney has certain duties when they are making decisions for you. They must:
- act in your best interests
- consider your past and present wishes and feelings
- keep you involved in the decisions they make, as far as you can be
- not take advantage of you to benefit themselves
- keep records and keep your money and property separate from their own.
Your attorney must consider whether you have mental capacity to make a decision for yourself before making it for you. They should assume that you have that capacity unless it is shown otherwise.
If they don’t think you have capacity to make a decision, they should think about whether you could make it at another time in the future.
They should also consider if it’s possible to delay the decision until you can make it. Your attorney might need to give you extra support so that you can make the decision yourself, for example by using different types of communication such as pictures.
More information about the role of attorneys
If you want, you can include instructions on the LPA form for your attorney to follow.
You can also include preferences that you would like them to take into account when making decisions for you. For example, you might say that you would prefer to live somewhere with access to a garden or that you would prefer to invest in ethical funds. You don’t have to do this but some people find it useful.
You can also limit the types of decisions that your attorney can make by writing this on the form. For example, you might say that the attorney can only make decisions about your house. However, it is more usual to give the attorney the general powers that the law allows.
If your attorney doesn’t behave as they should, the LPA could be cancelled.
If your attorney takes advantage of you or isn’t acting in your best interests, this can be reported to the OPG who will look into it. In serious cases the attorney could also be prosecuted.
If you choose to have more than one attorney (for example, your children, if you have more than one) you must decide how your attorneys will act.
They can make decisions together (‘jointly’) or act separately (‘severally’), or a combination of both, in the following ways:
- Jointly – this means that the attorneys must always act together, so they must agree all decisions and all sign documents.
- Jointly and severally – attorneys can act together, but can also act on their own.
- Jointly in some matters and severally in others – for certain decisions all your attorneys must agree, but for other decisions they can act independently. For example, you might decide all your attorneys must agree to selling property or decisions about medical treatment, but they can act on their own for day-to-day decisions such as those about eating and drinking or paying regular bills.
It can be helpful to have more than one attorney so that they can share decision-making and bring different points of view to the role. It can be particularly useful if you own a property with someone who is your attorney. In this situation, if the property needs to be sold, it can become complicated and you should seek legal advice.
Having another attorney, who does not have a share in the property, and who can act ‘jointly and severally’ with the first attorney, can make things easier.
There are very strict rules about your attorney giving gifts on your behalf.
What are the rules for LPA attorneys?
An LPA attorney can only give gifts in very limited situations. These are if the gift is:
to one of your family members, friends or acquaintances (including the attorney themselves) on a ‘customary occasion’ when gifts are given (such as a birth, a birthday, a wedding or civil partnership, an anniversary or a religious festival)
- to a charity that you donated to before or might have donated to.
In both cases, the gift must be of reasonable value compared with the value of everything else that you own.
Your attorney cannot give a gift on your behalf unless you are unable to make the decision about it yourself.
What are the rules for EPA attorneys?
There are slightly different rules for EPA attorneys.
An EPA attorney can only give gifts:
- to a family member or someone who is connected to you (including the attorney themselves). They must be of a seasonal nature (for example, a Christmas present) or given on, or on the anniversary of, a birth, marriage or civil partnership
- to a charity to which you donated or might have donated.
These gifts must also be of reasonable value compared with the value of everything else you own.
If your attorney is unsure about whether they can give a gift on your behalf, they can speak to the OPG for advice (for contact details, see ‘Lasting power of attorney - other resources’).
Your attorney will be able to claim expenses from your money, but only for things they need to do to carry out their role as an attorney. For example, they can use your money to cover travel costs for going to the bank to discuss your accounts.
They will not be able to claim an allowance from your money for the time they spend carrying out the role (unless they are a professional attorney such as a solicitor).