If choosing 2 or more attorneys you will need to decide on a joint, or joint & several appointment.
If you appoint more than one attorney in your LPA, you will need to decide whether your attorneys act together either:-
- JOINTLY; or
- JOINT & SEVERALLY
Here are the differences, together with the pros and cons of each.
In this instance, all attorneys MUST act together on any and every decision. This might be something as simple as paying a bill, through to something as significant as selling your house.
Joint & Several Attorneys
With this choice, your attorneys can act EITHER together, OR individually. They do not need the consent/involvement of other attorneys. So again, this might be something as simple as paying a bill, right through to selling your house. This is generally considered the more practical and flexible choice.
Joint for some but not for others
Thirdly, you can specify that some decisions can be made joint & severally, but others must be made jointly. So, in the example about you may be happy for bills to be paid individually, but selling your house may require the unanimous agreement of all attorneys (ie in that second example they would have to act jointly).
What if a Joint (only) Attorney can no longer act?
If you have appointed jointly (only) Attorney(s) and one can no longer act, then unless you have appointed replacement attorney(s), the whole thing then fails.
What if a Joint & Several Attorney can no longer act?
This is one of the notable benefits of a joint & several LPA. If any one of the joint & Several attorneys becomes unable to act, then either:-
- Remaining attorneys can carry on as normal; and/or
- Replacement attorneys can step in
Pros & Cons of Joint LPA v Joint & Several LPA
It is generally acknowledged that joint & several is the more flexible/practical choice. Obviously, if your chosen attorneys have to do everything this can present some unwelcome admin hurdles!
Donor’s will often see a possible benefit of a joint only appointment being ‘safer’ in the sense of one of their attorneys might get up to no good! NB, if you have such concerns, there is a very strong argument to say you are choosing the wrong people to be your attorneys! And, do remember that all attorneys are bound to act in the best interest of the Donor in any event. And, they are answerable to the Court of Protection if they breach that duty.
Also, if you make a joint only appointment (without replacement attorneys), the whole thing will fail if one of your attorneys becomes unable to act for any reason. With a joint & several LPA, if one of the attorneys becomes unable to act, the LPA endures in any event in favour of the remaining attorney(s).
What is a Replacement Attorney?
Replacement attorneys step in if one or more of your chosen attorneys become unable to continue to act (eg if they themselves were to lose capacity). You can specify who is to be a replacement, and in what order (if there are more than one replacement. It is particularly important to have replacement attorneys if you opt for the less flexible joint only appointment in the first instance.