Should I appoint my attorneys Jointly or Jointly and Severally in my LPA?

Whether you are creating an LPA for your health and welfare or your property and finances, you need to make a decision as to whether your attorneys will act either Jointly or Jointly and Severally. The choice is completely dependent on the individual circumstances and there is not necessarily a right answer. Family Law experts Caroline Rushton, George Newton and Private Wealth expert Nima Stepney explain what may be the most applicable in your situation when taking into account your families relationships and level of complexity of your finances. 

What does it mean for my attorneys to act jointly?

If you opt for your attorneys to act jointly then quite simply, they must make decisions together and all must agree before any steps are taken. In terms of administrative work, they would all be required to sign any documentation on your behalf.

The advantages of attorneys acting jointly is that not one single person has ultimate control over decisions that will impact you and may be applicable where substantial assets are involved. This is more relevant in later life marriages, often referred to as silver marriages, whereby individuals bring to their marriage their own independent assets which are often more substantial than young couples. Therefore, when combined in marriage there is an increased change of there being substantial assets where additional levels of oversight may be needed. 

However, with joint decision making can come delays. For example, if an attorney is ill or unavailable for whatever reason pressing decisions may go unresolved for a while. In addition, one attorney can simply disagree with the others and therefore cause further delays until all have agreed. This is not ideal with decisions with financial or health consequences. If no agreement can be reached an application to the Court of Protection may be required.

Issues may also arise if an attorney can no longer act and there is provision for a replacement it will render the LPA invalid and a new LPA will be required.  If the donor no longer has capacity an application to the Court of Protection for deputyship will be required. 

Would it be better for my attorneys to act Jointly and Severally?

This does ultimately depend on your circumstances, but it does give your attorneys the flexibility to make decisions together or by themselves. This allows different attorneys to deal with different tasks such as one dealing with normal everyday financial transactions whilst another may deal with the ongoing care team for example. 

It does also then allow the attorneys to come together on significant decisions and make these jointly to ensure they are adhering to their legal obligations and the overall duty to act in your best interests.

However, there is also a greater risk of misuse as this greater flexibility allows attorneys to act individually, and whilst there are legal parameters in which they must act, they may not be held accountable for their decisions until it is too late. It is imperative to therefore choose attorneys you can completely trust. In contract with attorneys always acting jointly where it gives that greater oversight on decisions. 

Can I appoint my attorneys jointly for some decisions and jointly and severally for other decisions?

This is possible. For example you can specify in the LPA that sale of the property has to be agreed jointly and all other decisions have to be made jointly and severally.  It is important you take advice before carving out any decisions that must be made jointly to ensure it is workable practically.  Otherwise your attorney may end up with having to make a court of protection application if they cannot agree.

How should I appoint my attorneys in silver marriages and blended families?

There is unfortunately not a universal answer to this and family dynamics should be taken into account. As mentioned above with silver marriages and the merging of families (blended families), there may be a greater asset value but also children from previous relationships. It is not guaranteed that the stepchildren’s expectations will align with your new spouses. You can of course appoint both your children and your new spouse to be your attorneys, however having new spouses appointed to act jointly with your children may cause strain on relationships if there are disagreements. Hence it is important to carefully consider who you choose and how you envisage your attorneys to work together to help reduce conflict. 

What happens if my attorneys disagree?

The obvious effect of disagreements is undue delays and it may even be costly if applications are needed to be made to the Court of Protection to determine the way forward. 

You can attempt to circumvent the chances of disagreements by deciding different arrangements for different decisions, such as outlining that attorneys are to act jointly when selling assets of a certain value or jointly and severally when dealing with everyday finances.

It is important that you choose attorneys who can collaboratively and calmly make decisions over just the people closest to you.

A Letter of Wishes may also be appropriate, especially in the example of blended families where there is already likely to be differing opinions and expectations. A Letter of Wishes helps you outline guidance on how you would like the selected attorneys to approach differing decisions.

Summary

There are not a one size fits all approach when decision how to your appoint your attorney and the most suitable arrangement will depend on your level of finances, family and availableness of satisfactory attorneys.  

It is important to take time when deciding who should be your attorneys and how they should make decisions. It is best to seek legal advice where appropriate and wider estate planning advice may also be necessary. 

Ultimately, the decision you make would need to prioritise minimising the risk of delays in decisions as well as reducing potential conflict between attorneys whilst protecting your interests.

If you are looking for advice on any of the issues featured in this article, please contact Caroline Rushton, Partner and Head of Family Law Bromley, or Nima Stepney, Partner in our Private Client team on 020 8290 0440.

Disclaimer
This article is intended for general information purposes only and does not constitute legal or financial advice. The law may have changed since the date of publication, and the application of the law will depend on your individual circumstances.

You should seek independent legal and financial advice before taking, or refraining from taking, any action based on the content of this article.