Options as to how attorneys can make decisions together under an LPA
When you make a lasting power of attorney, you choose not only who makes choices about your financial affairs or your health and care, but also how those decisions are made.
The technical term for a decision maker is an attorney, but we interchangeably use the term helper as well.
How is often a more difficult choice than who
There are good reasons why you should nominate more than one attorney, and why you should also nominate replacements. In short, these are:
if someone can no longer act as your attorney, or no longer wants to act and steps down voluntarily, then there will be someone else to make decisions for you
important decisions can be made by a number of people who together should have a better understanding of what you might want, and more experience and knowledge of the consequences of any decision
There is one more reason to choose multiple attorneys, which is speed of decision making. Yet, for it to be an advantage requires you to choose carefully how your helpers work together.
Helpers are not always on hand 24/7
Most attorneys are not live-in carers. They are most often family members, who spend significant amounts of time making sure you are ok, but also who have their own lives to lead. It is unlikely that they will be around all the time – they may have children to look after and work to do.
It only takes a small event for there to be a large knock on consequence. If you stumble and fall at home, you may break a wrist on landing. That may change the type of care you need, from part-time to round the clock, because you are suddenly less mobile – even though the break is minor. The decision as to where you receive full time care is difficult. There may be limited options at that point in time, each with significant downsides. Plus, there will be decisions about how it should be financed, and what should happen to your existing home and possessions if you need money quickly.
Allow freedom to make the best decisions quickly
It is possible to nominate separate people to make decisions about your finances and your care. If the people holding the purse strings are not willing to finance the decisions of the people who are looking for the most appropriate healthcare for you, it may be some time before a solution is found, and it is you that will have suffered in the meantime.
That is one reason why it is often a good choice to choose the same attorneys in both types of LPA.
But even when it comes to attorneys are the same between documents, they may disagree with each other. To some extent, you want this. Your helpers should consider fully what the options and consequences are. But making a reasonable decision quickly is often more important than coming to the best decision slowly. Windows of opportunity can close while decisions are debated.
Worse still, you don’t want to have a decision not made at all.
When you make an LPA with full mental capacity, it is hard to see ahead to when it might be used. No-one wants to think of themselves as not being able to make decisions, some of which we have been making since young childhood. It is therefore very natural to restrict what attorneys can do in the belief that we will still be able to be able to do the smaller things ourselves.
This isn’t the case though. Loss of mental capacity impacts many parts of our lives, including small things.
For example, we may be willing to accept that big decisions such as which care home we live in can be made by our attorneys, but not small everyday choices such as what clothes we wear.
It is too easy, and a big mistake, to restrict our attorneys to only having power over those things we think most important.
What many people don’t realise is that if our attorneys can’t make a decision because we have restricted their powers, and we can’t make a decision because we don’t have mental capacity, no-one else can either, and what will happen is probably not what our attorneys would want, nor what we would want. Most people wouldn’t want to be left in their pyjamas all day because no-one can decide what clothes they should be dressed in.
You can specify how attorneys work together
Likewise, how attorneys can work together has as much importance as what powers they have or not.
There are two simple options in the LPA forms. There is also a third hybrid.
The first option is that they work jointly together. With this option all attorneys must agree to all decisions, else one won’t be made.
As discussed above, this option is often not ideal. If the attorneys don’t get on or aren’t available (perhaps one is on holiday), you could be left without care.
More consequentially, if one attorney dies (such as your husband or wife) or themselves loses mental capacity, all the remaining attorneys lose their power. If you haven’t appointed replacements (who cannot be the same people as your original attorneys), there will be no-one to help you.
The second option is jointly or individually.
With this option, helpers can make decisions on their own or together.
If one helper makes a decision, it has the same effect as if all of them made that decision together.
Most people choose this option because it’s the most practical. Helpers can make important decisions together if they wish, but simple or urgent decisions can be made by just one person. The helpers choose when they act together and when they act alone.
The advantage of this option is that if one of the helpers dies or can no longer act, the remaining ones can still make decisions for you.
The third option is the hybrid – attorneys must decide on certain things you nominate together , or can act individually for everything else.
You can therefore state that a decision, for example, about any spending over £5,000 must be unanimous, but let your helpers choose individually about what you wear or eat.
The same disadvantages apply here as to those the option that every decision should be made together. If one helper can no longer help or dies, all the remaining helpers lose their power to make those decisions that you have specified must be made by all.
However, your remaining helpers will still be able to make the decisions that you have said can be made together or individually.
What might work best for you
Our belief is that you shouldn’t restrict your helper’s ability to help you unless there is very good reason to do so. If you choose the right people, and leave instructions as to your wishes (for example, by talking to them in advance of losing mental capacity, and leaving a statement of wishes), you’ll receive better care than if you try to control what they can do. There are simply too many unknowns in the future to be able to state in a couple of hundred words what should happen in any given scenario.
Making an LPA
Net Lawman provides a free LPA service, which it has developed in conjunction with Unforgettable, a dementia products and services specialist retailer. You can use the online service to create and amend either type of lasting power of attorney, and there are low cost options to have your forms checked by a professional will writer for peace of mind.
Please note that the information provided on this page:
- Does not provide a complete or authoritative statement of the law;
- Does not constitute legal advice by Net Lawman;
- Does not create a contractual relationship;
- Does not form part of any other advice, whether paid or free.
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