6. Who can be an attorney
You can choose anyone you want to be your attorney, as long as they are over 18. For a property and affairs LPA, however, the person you choose cannot be bankrupt.
It’s important to think carefully about who to appoint. Think about who knows you well and who you trust to make these decisions for you, and also whether the person is reliable and has the skills to carry out the role. You can choose to have more than one attorney.
Most people will choose a relative or close friend to be their attorney, especially for a health and welfare LPA. You can also ask a professional however, such as an accountant or solicitor. You might want to think about whether this would be a good option for a property and affairs LPA.
A professional may charge for their time, and you need to name an individual rather than an organisation or company. The person must also be willing and able to carry out the role.
You can also appoint a replacement attorney. This is the person who you would want to make decisions for you if your first choice attorney is no longer able or willing to carry out their role. You might want to think about this, especially if you are only appointing one person to act as your attorney.
How an attorney acts
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.
- Jointly – this means that the attorneys must always act together, and therefore must agree all decisions and both sign documents.
- Jointly and severally – attorneys can act together, but can also act on their own.
- Jointly in respect of some matters and severally in respect of others – for certain decisions all your attorneys must agree, but for other decisions they can act independently. For example, you might decide all of 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 diet or dress.
When making decisions, your attorney must follow the Mental Capacity Act. This means that they:
- must act in your best interests
- must consider your past and present wishes
- cannot take advantage of you to benefit themselves
- must keep all of your money separate from their own.
If your attorney fails to follow these rules, the LPA could be cancelled. If your attorney takes advantage of you, the OPG will investigate and the person could be prosecuted. Having an LPA in place can therefore protect you from potential future abuse.