Who Should I Choose as My Attorney?
10 May 2019
When you make a Lasting Power of Attorney, you have an important decision to make, and that is who you should choose to appoint as your attorney. To make this decision easier, we've put together some guidance.
1. Understand the Role of Attorney
The first thing that it's important to do is to gain an understanding of what the role of an attorney entails. Your attorney is the person who will step in and make decisions on your behalf if you become unable to make these decisions for yourself.
The decisions that they will be able to make will depend on what type of Lasting Power of Attorney (LPA) you have put in place.
With a Health and Welfare LPA, your attorney will be able to make decisions for you about your medical treatment, your day-to-day care and your general wellbeing. This might include deciding where you are going to live, for example, or deciding whether you should receive certain medical treatment.
A Health and Welfare LPA will only ever come into effect if you lose the ability to make your own decisions.
The other type of LPA covers Property and Financial Affairs. This grants your attorney legal authority to manage your finances and deal with any property or other assets that you own in England and Wales. This might include withdrawing money from the bank for you, paying your bills or even selling your home.
You can choose for your Property and Financial Affairs LPA to be activated while you are still able to make your own decisions if you wish. This may be beneficial if you have limited mobility, for example, so are unable to get to the bank yourself, or if you are living abroad and want someone to be able to manage your property for you.
You can choose to put just one type of LPA in place, or you can put both types in place.
2. Know the Rules on Who You Can and Can't Appoint
There are some restrictions as to who you can legally appoint as your attorney. It's essential to consider these rules and ensure that the individual you are considering appointing as your attorney meets this criteria.
Firstly, your attorney must be over the age of 18. Minors are not permitted to act as an attorney. Secondly, if you are putting a Property and Financial Affairs LPA in place, your attorney cannot be bankrupt or subject to a debt relief order.
3. Choose Someone You Trust
As you can see, the role of attorney carries a great weight of responsibility as well as a great deal of power. For this reason, it's essential that you appoint someone you trust.
There are no formal restrictions on who you can appoint in this role. Most people tend to choose a family member or a friend, but it's also possible to appoint a professional attorney such as a Solicitor (although do bear in mind that they will charge a fee for this service).
While your attorney's activity will be supervised by the Office of the Public Guardian, it remains essential that you trust the individual you choose to appoint as your attorney. You should be confident in their ability to carry out the role as well as being assured that they will act in your best interests.
4. Communicate with Your Attorney
Once you have decided who you would like to appoint as your attorney, it's important to communicate with them. Make sure they are willing and able to take on this role before you get your LPA drafted. Give them all of the necessary information and then allow them some time to think about whether they are willing to take this on. Don't put them on the spot.
It's also important that your attorney understands your wishes and is clear on how you would want them to act in certain situations. This way they will be well-equipped to take control and make swift decisions that they know to be in your best interests, if the need arises.
5. Choose a Backup Attorney
You never know what the future holds, and even if your chosen attorney is willing and able to take on the role when you ask them, this may not still be the case if and when your LPA is activated. For this reason it's a good idea to appoint one or more backup attorneys, who can step in and take the reins if your original attorney is unable or unwilling to act.
If you fail to appoint a backup attorney and your chosen attorney isn't able to act, then your LPA will effectively be worthless. In this situation, your loved ones will need to apply to the Court of Protection for a Deputyship Order instead.