Lasting Powers of Attorney (LPA) are powerful legal documents that let you appoint family members, friends and professional advisers to help or make decisions on your behalf should you lose the ability to make those decisions directly.
There are two types of LPA; one that addresses property and financial affairs and the second addresses health and welfare. You can read more about these here and here.
But what happens if family members or friends appointed as your attorney are unable to act, perhaps through ill-health or a change in their personal circumstances?
Sole attorneys
Where just one attorney has been appointed and with no replacement attorney named, this would effectively bring the LPA to an end. If as the donor you still have capacity to make decisions, you will need to create a new LPA and appoint new attorneys. If capacity to make decisions has been lost, an application to the Court of Protection will be needed to appoint a deputy to make decisions on your behalf. This can be a lengthy and costly process.
If a sole attorney has been appointed with named replacement attorneys, they can step up and make decisions on your behalf without the need for a new LPA. They will, however, need to notify the Office of the Public Guardian when they start acting.
Joint attorneys
Given the position attorneys hold and their ability to make decisions over financial and health matters, it is often advisable to appoint more than one. But here, consideration is needed as to whether they can act ‘jointly and severally’ or ‘jointly’.
When appointed ‘jointly and severally’, attorneys can make decisions on your behalf together and independently from each other. It is a practical solution where, for example, siblings caring for an elderly parent can split decision-making. It also means that if one attorney is unable to act or make a decision, the other can easily and quickly step in.
However, if attorneys are appointed ‘jointly’, decisions must be agreed before action can be taken. Not only is this cumbersome, it can also cause problems if one attorney is no longer able to act as it effectively means remaining attorneys cannot act.
It is possible to blend the powers attorneys have to act ‘jointly and severally’ for the day-to-day decisions and ‘jointly’ for quite specific or big-ticket decisions, such as the sale of the family home.
Take advice
Whilst it is possible for an individual to create an LPA directly, it is advisable to instruct an experienced solicitor to help you and your attorneys create an LPA that is best suited to you and your financial and care needs. Here, a solicitor can, for example, explain the pros and cons of attorneys acting ‘jointly and severally’ or ‘jointly’ and the implications of decisions taken.
Contact our Private Client Solicitors
If you are in need of advice or assistance on any of the legal issues mentioned in this article, please contact any member of our experienced Private Client team on 020 7631 4141 or email privateclient@bishopandsewell.co.uk
The above is accurate as at 21 March 2025. The information above may be subject to change.
The content of this note should not be considered legal advice and each matter should be considered on a case-by-case basis.
