How to choose a Lasting Power of Attorney for your will

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When an individual makes what is known as a ‘Lasting Power of Attorney’ (LPA), they draw up a legal document to grant someone, or more than one person, permission to make important decisions on their behalf.

The powers only come into effect at such a time as the person making the LPA – who is known in legal terminology as the ‘donor’ – either chooses to hand over responsibility, or loses the mental capacity to do so.

The role of an attorney involves a great deal of power and responsibility over issues as important and sensitive as your healthcare (including end of life choices), your finances and where you live,  so it’s extremely important you choose a person, or people, you trust. 

The responsibilities of an Attorney

The specific responsibilities of an attorney vary according to the type of LPA that is registered, but always include:

  • Acting in the donor’s best interest – Attorneys must ensure they safeguard the needs and wishes of the donor and act in their best interests at all times.
  • Keeping their possessions separate – Attorneys must not mix their own possessions with those of the donor. It is their responsibility to keep them safe and not misuse them in any way. If you combine your money with the donor’s, there is a possibility you may end up spending what is not yours, and this is a breach of the Power of Attorney.
  • Help the donor to make their own decisions and always listen to and abide by any wishes they express when they have mental capacity. – You must also be in a position to offer advice to the donor in cases where they are unsure of which decision to make. At all times you are required to act in their best interests however and it is important not to disregard their choices when they have mental capacity, even if you disagree with their decision or think it ‘unwise’. 
  • Choose the least restrictive decision – Anyone making a decision on behalf of a donor should consider all the alternatives and choose the one that is the least restrictive of their rights and freedoms.

How to choose an Attorney

The role of an attorney involves a great deal of power and responsibility over issues as important and sensitive as your healthcare (including end of life choices), your finances and where you live,  so it’s extremely important you choose a person, or people, you trust. 

Before you register your LPA, it is important to speak to those you are considering for the role and give them time to think about whether it is something they feel they can take on.

You are allowed to choose whomever you like to be your attorney. They could be a family member, a friend, your spouse, partner or civil partner. Alternatively they could be a professional, such as a solicitor.

It is absolutely fine to choose more than one attorney, in fact it’s advised that you do so. You cannot guarantee that one particular person will be available or able to take on the role if the time comes at some point down the line. You may wish one attorney to make decisions on matters to do with your health, for example, and another to take decisions regarding your finances.

There are implications however, if you appoint more than one person as you will need to decide whether they will make decisions together ‘jointly’, as a team, or individually, ‘severally’.

In law, ‘jointly’ means they work together on all matters. ‘Jointly and severally’  means they may act together or separately, dividing up matters between them.

You could also specify which issues your attorneys need to act jointly on, and which you will allow several decisions on.

Who makes a good Attorney?

An attorney should always be someone who you trust to act in your best interests and who understands and respects your values. 

In addition, you could look for someone who has the following qualities:

  • Attention to detail
  • An understanding of their duties, and a commitment to taking those duties seriously
  • An understanding of finances 
  • The ability to work well and communicate well with others, including finance, legal and medical professionals

If you have extensive business interests that your attorney may need to make decisions relating to, it may help if the person you’re appointing has a wise business head too and understands your positions on important business matters.

Are Attorneys paid? 

No, not unless they are professional attorneys.

An attorney can claim back any reasonable expenses they incur as part of the role – such as postage, travel costs or photocopying – from the donor’s money but all expenses must be accounted for with receipts, and records kept of how the money was spent. 

As an attorney, you cannot claim for your time. 

Conclusion

It is important to give a good deal of thought to who you should appoint into the role of attorney as your LPA. Always give them the chance to think it over too and speak to a legal professional if you have any further questions about what the role entails. 

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