LPA – who can be a Power of Attorney?

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Who can be a Power of Attorney?

You can make a friend, family member, or professional adviser your power of attorney.

You can choose whoever you want to act as your attorney under a lasting power of attorney (LPA).  They must be over 18, and of ‘sound mind’ (ie have full mental capacity).  Under a Property & Finance LPA, your attorney must not be bankrupt.

The question is perhaps more choosing the right person or people.  Remember, if it ever becomes necessary for your chosen attorney(s) to look after things for you, it is important that they are people you feel comfortable with – for example they have the time, skills, and perhaps even knowledge of your wishes to be able to carry out the appointment for you.  It is a ‘big ask’ of anyone to be an attorney.

How do I choose an Attorney for my LPA?

This is entirely personal to you.  But, think carefully about whether your chosen attorney has the time, skills, and desire to take on that responsibility if ever needed.  A good starting point when choosing your attorney(s) is to think about what an attorney has to do (see below).

What does an Attorney do?

In the absence of any restrictions, your attorney can do anything from pay a bill, right through to sell your house (under a Property & Affairs LPA).  A Health & Welfare LPA allows your attorney to do anything from choosing what care you receive or where, right through to directing a medical team as regards end of life treatment.

You would expect an attorney to:-

  • Keep the donor as involved as possible (where appropriate)
  • Consider the donor’s past or present wishes
  • Act in the donor’s best interests
  • Not benefit themselves in any way
  • Keep records

Who can be my Attorney

Typically, this is often a spouse, failing which children.

It can however be any relative, friend or even a professional such as an accountant or solicitor.  A professional attorney is entitled to charge their normal fees for time taken acting as professional attorneys.  ‘Lay’ attorneys (eg friend of family) can NOT charge for acting as an attorney, though they can claim ‘out of pocket’ expenses.

Can my Certificate Provider be an Attorney?

Your Certificate Provider is the person confirming to the OPG that you were of sound mind when you made the LPA.  As part of that ‘certification’ they will also be confirming that (to the best of their knowledge) you were not under any pressure to make the LPA, and you knew and understood the nature and extent of the LPA appointment.

Your Certificate Provider and NOT also be an attorney.  QLAW offers a service to be your Certificate Provider where you are appointing lay attorneys, but would like a professional Certificate Provider.  Read our ‘What is a Certificate Provider?‘ article for more information.

Can I have more than one Attorney?

Yes.  And, if you do, you will need to choose between:-

  • Joint
  • Joint & Several

What is a Joint LPA?

If you appoint more than one attorney on a joint basis, they must agree and act on all decisions together.  They have no opportunity to do things separately.  This can present as an administrative headache.  And, if one of the joint attorney’s becomes unwilling or unable to continue to act then the whole joint appointment comes to an end.

What is Joint & Several LPA?

Under a Joint & Several LPA, you have more than one attorney, BUT, they can act EITHER together, or separately.  AND, should one of the attorneys become unwilling or unable to continue to act, the remaining attorney(s) can continue to act without their appointment failing (as it would under a joint only appointment).

Take your time and consider carefully who can best act as your power of attorney.

What are Replacement Attorneys?

You can appoint replacement or ‘substitute’ attorneys.  So, for example, for a married couple a typical appointment might be to each other (ie their spouse), failing that replacement attorneys being their children (assuming they are over 18).

When does a Replacement Attorney appointment come into effect?

A replacement attorney will only be able to act if the first appointed attorney(s) have become unwilling or unable to continue to act (eg they have themselves lost capacity, died, or revoked their appointment).

Replacement Attorney or Joint & Several appointment?

A popular choice is sometimes to appoint attorneys on a joint & several basis rather than primary attorney with substitutes.  This is perhaps most notably with married couples/children.  In this example, rather than having husband/wife FAILING which children (as substitutes), the LPA can simply appoint spouse AND children jointly & severally.  This gives the flexibility of the children helping out ahead of the other spouse losing the ability to act.

What changes do I have to report to the OPG?

Once you have made and registered your LPA, you must notify the OPG (Office of the Public Guardian) if your attorney(s) change their name, address, or they die.

If there is a change of name or death, you must provide documentary evidence of this (deed poll).  You do not need to provide evidence of a change of address.

What happens if my Attorney dies?

If you have only appointed one attorney (without replacement attorney’s) then the LPA will automatically be cancelled.

If you made a joint and several appointment then the remaining attorneys can continue to act.

If you made a joint (only) appointment then any remaining attorneys will no longer be able to act as the appointment as a whole will fail on the death of any one joint (only) attorney.

What happens to my LPA if I die?

Your LPA will ‘die’ with you.  Your affairs then fall to the executors of your Will.  An attorney must NOT do anything under the LPA from the moment you die – as their power is immediately revoked.

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