Joint or Jointly and Severally: How Should LPA Attorneys Act?

A Lasting Power of Attorney (LPA) allows you to appoint one or more people you trust, known as your Attorneys, to make certain decisions on your behalf.

There are two types of LPA: one for Health and Welfare decisions and another for Property and Financial Affairs. If you appoint more than one Attorney, you will also need to decide how you want them to work together.

Attorneys can be appointed to act jointly, jointly and severally, or jointly for some decisions and jointly and severally for others.

This is an important decision, as it determines how decisions are made, how quickly they can be made, who needs to agree and what happens if one of your Attorneys is unable to act.

There is no single ‘correct’ choice. However, it is important to understand the differences to help ensure your LPA works in the way you intend and does not have unforeseen limitations.

What Does It Mean for LPA Attorneys to Act Jointly?

In short, Attorneys who act jointly must make decisions together. All Attorneys must agree before a decision can be made.

There are a few important things to consider with this option:

• Attorneys must be unanimous when making decisions. This may be beneficial where the Donor wants all Attorneys to be involved in important decisions.
• If an Attorney dies or is otherwise unable to act, this can prevent the remaining Attorneys from continuing to make joint decisions unless appropriate arrangements have been made for Replacement Attorneys.
• There can be a ‘stalemate’ if the Attorneys cannot reach a unanimous decision.
• If an Attorney on a Property and Financial Affairs LPA becomes bankrupt, this can affect their ability to continue acting.

Appointing Attorneys jointly can therefore provide greater collective oversight, but it may also make decision-making less flexible.

What Does ‘Jointly and Severally’ Mean on an LPA?

Attorneys appointed jointly and severally can make decisions independently or together with the other Attorneys.

This provides greater flexibility. If one Attorney is unable or does not wish to act, the other Attorneys may still be able to make decisions.

There are a few important things to consider with this option:

• Attorneys do not need to make every decision together, meaning decisions can often be made more quickly.
• This can be particularly practical where Attorneys do not live near one another or have different schedules.
• An Attorney can make a decision independently without requiring the agreement of the other Attorneys, including potentially significant decisions concerning the Donor’s property or finances.

If you would like to understand more about the financial decisions an Attorney may be able to make, read our guide to what a Property and Financial Decisions LPA covers.

Acting jointly and severally can therefore provide greater flexibility, although the Donor should be comfortable with each Attorney having the authority to make decisions independently.

Can Attorneys Act Jointly for Some Decisions and Jointly and Severally for Others?

Yes. It is possible to require your Attorneys to act jointly for certain decisions while allowing them to act jointly and severally for others. This is sometimes referred to as a hybrid approach.

For example, you may wish to allow your Attorneys to act independently for routine matters but require them to act jointly for particularly important decisions, such as the sale of your property.

If you choose this option, it is important that the LPA clearly states which decisions must be made jointly and which can be made jointly and severally.

Poorly drafted instructions could create uncertainty or make parts of the LPA difficult to operate, so careful consideration should be given to how these decisions are set out.

Which Option Is Right for Me?

There is no ‘correct’ choice when deciding how your Attorneys should act. Different arrangements suit different circumstances.

When considering your personal circumstances, it can be helpful to ask:

• What is the relationship like between my chosen Attorneys?
• What happens if one of my Attorneys dies?
• What happens if an Attorney loses mental capacity?
• What happens if my Attorney is my spouse or civil partner and our relationship legally ends after my LPA is registered?
• What happens if an Attorney becomes bankrupt?
• What happens if one of my Attorneys moves away?
• Am I comfortable with each Attorney being able to make important decisions independently?
• Are there particular decisions that I would want all of my Attorneys to agree on?

It is also possible to appoint Replacement Attorneys, who can step in if an original Attorney can no longer act.

The way your Attorneys and Replacement Attorneys are appointed can have significant consequences for how your LPA operates in the future, so it is worth considering these possibilities when the document is first prepared.

If you are still considering whether you need an LPA in the first place, you can also read our guide explaining why you might need a Property and Financial Affairs LPA.

Do I Need a Solicitor When Appointing Multiple Attorneys?

You do not have to use a Solicitor to make a Lasting Power of Attorney. However, it can be beneficial to take legal advice if you are unsure how you want your Attorneys to act.

Having multiple Attorneys and Replacement Attorneys can provide additional security, but it can also make the arrangements more complicated.

The LPA must be completed correctly, with the Donor, Attorneys, Replacement Attorneys and Certificate Provider signing and dating the relevant sections in the required order.

Taking legal advice can help ensure that your Attorneys are appointed in the way you intend and that your LPA continues to work effectively if circumstances change in the future.

If you would like to put an LPA in place but are unsure about preparing the documents yourself, our Wills and Probate team at Thorneycroft Solicitors will be happy to assist.

Contact us today on 01625 503444 or email [email protected].

Written by Keira Chan, Paralegal in our Wills and Probate team.