Appointing Attorneys: What to Consider When Making an LPA

Creating a Lasting Power of Attorney (LPA) is a significant decision. It’s not only about putting legal safeguards in place—it’s about choosing the right people to act in your best interests when you may no longer be able to do so yourself. That’s why careful consideration must be given to who is appointed, how many attorneys are needed, and how they will make decisions. Below are some key points to help donors make informed choices:

Attorneys must be over 18 and have the mental capacity to act when the LPA is made. It’s generally unwise to appoint someone who is significantly older or whose capacity may come into question.

For Property and Financial Affairs LPAs, anyone who is bankrupt or subject to a debt relief order cannot act as an attorney. If an appointed attorney is later declared bankrupt, their appointment is automatically revoked—potentially putting the LPA at risk. Donors should therefore consider an attorney’s financial responsibility and stability.

In Health and Welfare LPAs, capacity also includes the emotional resilience to make potentially life-changing decisions. For instance, if the donor is granting authority to refuse life-sustaining treatment, they must be confident the attorney is capable of handling such a serious responsibility.

This consideration is especially relevant for Property and Financial Affairs LPAs. Does the donor have:

• A complex estate?
• Business interests?
• Multiple investments or a property portfolio?

If so, it may be prudent to appoint someone with specialist knowledge or professional skills, such as an accountant or financial adviser. In the case of Business LPAs, the attorney may even need specific qualifications or experience in the relevant field. For example, a managing partner of a law firm might need to appoint another qualified solicitor to act on their behalf in business matters.

A donor can appoint a sole attorney, multiple attorneys, and replacement attorneys. The LPA form provides space for up to four main attorneys and two replacements. While there is no legal maximum, the Office of the Public Guardian (OPG) advises against appointing more than four attorneys due to practical challenges.

If only one attorney is appointed, it is strongly encouraged to name at least one replacement. If the sole attorney becomes unable to act and no replacement is named, the LPA will fail.

Where multiple attorneys are appointed, the donor must decide how they will act:

• Jointly – attorneys must make all decisions together
• Jointly and severally – attorneys can act either together or independently
• Jointly for some decisions and jointly and severally for others – a hybrid option

Each method has implications. For instance, if attorneys act jointly and one becomes unable to act, the entire appointment fails. It’s important that donors understand the advantages and risks of each arrangement before deciding.

This is sometimes overlooked but is crucial. Attorneys should be able to communicate and cooperate in the donor’s best interests. This is true even when different attorneys are appointed for Property and Financial Affairs and Health and Welfare LPAs, as certain decisions may involve overlap and collaboration.

While attorneys can legally reside abroad, location matters. Donors should consider:

The practicalities of managing day-to-day matters from overseas

• Time zone differences affecting communication
• Challenges if in-person action is required

Appointing a distant attorney might complicate or delay decisions, particularly in urgent situations.

Appointing attorneys requires more than just choosing people you trust—it means selecting individuals with the skills, capacity, availability, and willingness to act in your best interests. Take time to reflect on your options and seek professional guidance if unsure.