If you and your sibling have both been appointed as attorneys in a Lasting Power of Attorney (LPA), you may wonder how this will work in practice. In this blog I will explain the roles and responsibilities you both have as attorneys and what you can do should an issue arise between you. 

Your role and responsibility as an attorney

Being appointed to act as an attorney for someone is a serious responsibility. In choosing you to act, the donor likely felt you are a trusted individual who can take on the responsibility necessary for their future health and financial decisions. They likely believe you will make decisions in their best interests for when they become unable to.

Acting jointly as an attorney  

When acting jointly with your sibling as attorneys, your roles and responsibilities are similar to those of a sole attorney, but with some additional considerations due to the shared responsibility. Here are some key aspects of your role:-

1. You must work closely with your sibling to make decisions in the best interests of the donor.
2.  Strive to reach a consensus on decisions whenever possible. This may involve discussions, negotiations, and compromise to find solutions that align with the donor’s wishes and needs.
3. Hold each other accountable for fulfilling your duties and responsibilities as attorneys, including keeping accurate records, managing the donor’s affairs responsibly and avoiding any conflict of interest.
4.  Inform each other of any significant decisions or actions regarding the LPA. Regular communication ensures transparency and helps prevent misunderstandings.
5. Consult with each other as well as the donor if possible, when faced with important decisions or situations that may impact the donors welfare or interests.
6.  Ensure all actions taken by you both comply with the law, regulations, and the terms of the LPA.

By working together effectively and fulfilling your duties conscientiously, you can ensure that the donor’s best interests are prioritised and that their affairs are managed responsibly and ethically.

What happens if we cannot agree?

Conflict resolution

In the event that you and your sibling have disagreements, the following options are available to you when trying to resolve disputes:

1. Reaching an agreement: the first step would be to openly communicate with one another and express your concerns and try to reach a compromise.
2.  Obtaining legal advice: seeking legal advice from an experienced solicitor could help provide clarity on your rights and options. They can review the LPA document, assess the situation and offer guidance as to the best course of action.

Applying to the Court of Protection: if the disagreement is still ongoing and cannot be resolved through negotiation or obtaining legal advice, then applying to the court for intervention might be the alternative. The court can make decisions regarding the LPAs, including appointing replacement attorneys and providing guidance on specific issues.

Summary

Every dispute is different and depending on the circumstances, one dispute might take a different approach to another.

Obtaining legal advice may be a good option for you as it will provide clarity on your options and will not escalate matters too much.

Our Wills, Trusts and Probate team or our Litigation and Dispute Resolution team can advise you on next steps. Please give us a call on 01908 660966 or 01604 828282 or email info@franklins-sols.co.uk.

A recent article prepared by my colleague Ellen Stiles highlighted the importance of preparing a Lasting Power of Attorney, especially in light of the current pandemic where they have been invaluable, not only for the vulnerable and elderly, but to a much wider group of people from all sections of society, who have required assistance through lockdown.

Following on from this article, the Office of the Public Guardian (the OPG) have recently unveiled an online platform which now allows an Attorney to create an account whereby they can upload a copy of the registered Lasting Power of Attorney. The Attorney can then get an access code that they can provide to the relevant organisations to prove their authority to act. Prior to this platform, paper copies of the Lasting Power of Attorney needed to be provided, which could then take several weeks to process causing delays for the Attorney(s) who needs the authority on the relevant account to act.

It is important to note that the online forum is only being rolled out for Lasting Powers of Attorney registered from 17^th July 2020, although the OPG are looking at extending it to Lasting Powers of Attorney registered before this date.

We do however advise that, although the online service may make the process more convenient for Attorneys and has received good feedback according to the OPG, caution must to be still be taken as, with any online platform, it could be open to abuse and safeguarding the Donor (the person making the Lasting Power of Attorney) must remain paramount.

For more information on Lasting Powers of Attorney, contact our friendly Private Client team today on 01908 660966 / 01604 828282 or email PrivateClient@franklins-sols.co.uk.

During the current Coronavirus outbreak, and with the lockdown in place, you will find a Lasting Power of Attorney invaluable.

A Lasting Power of Attorney (LPA) is a legally binding document whereby you can appoint someone, known as your Attorney, to make decisions and act for you when you are unable to do so for yourself. You must have the necessary mental capacity in order to make an LPA.

Whilst an LPA is most commonly used to support elderly and vulnerable people, it is now even more useful to a much wider group of people from all sections of society. Even the Prime Minister was affected by the Coronavirus, and if he had been incapacitated, his family would have needed an LPA to make personal decisions on his behalf. An LPA is beneficial to more of us now than ever before.

There are two type of LPAs which can be created, these are:

1. Property and Financial Affairs – covering decisions such as buying and selling property, investing money and managing investments, receiving income and paying liabilities.
2. Health and Welfare – covering decisions such as medical care you receive, where you live, who visits you, day to day care such as social activities, and what you eat. It also covers decisions in relation to life sustaining treatment.

With the current restrictions in place due to the pandemic, in particular for the vulnerable and elderly (but not limited to them), having an Attorney appointed to assist you with your affairs has never been so helpful. Subject to your preferences, an Attorney under a property and financial affairs LPA can assist you whilst you still have the necessary capacity yourself. However in these circumstances, any decisions made should be made with your consent. If in the unfortunate situation you were to lose the necessary mental capacity to make decisions in relation to your property and financial affairs, you can be reassured that your Attorney can continue to act on your behalf.

An attorney under a health and welfare LPA cannot act until you are unable to make the decision in question due to lack of mental capacity. This can include incapacity due to being in a coma, illnesses and disorders as well as Alzheimer’s and dementia.  During these unprecedented times many people are finding themselves in critical conditions whereby they are unable to make decisions for themselves. By having a health and welfare Attorney appointed you can be reassured that they can safeguard your preferences and wishes during these crucial times.

It is understandably vital that you appoint the correct Attorney. You can technically appoint as many Attorneys as you wish though commonly between 1 and 4 are appointed. You must not only ensure that you Trust your Attorney implicitly but that they are capable of taking on the role. Your Attorney must also agree to being your Attorney. Attorneys cannot simply do whatever they wish and are subjected to the rules that govern Lasting Power of Attorneys as well as any restrictions you choose to place upon them.

An LPA is a legal deed and it is therefore important that legal advice and assistance is obtained when you are considering preparing one. Nearly 22,000 LPAs have rejected by the Office of the Public Guardian over the past 12 months and sadly for some of these it may be too late for a further LPA to be prepared due to mental capacity having been lost.

The Government have now issued guidance in relation to the preparation and registration of an LPA during the Coronavirus outbreak. An LPA needs to be signed by all parties, including the appointed attorneys and each signature needs to be witnessed by an independent person. A certificate provider, whose role is to confirm that you understand what the LPA is and that no pressure has been placed upon you to make it, also needs to sign the LPA. It is possible for all parties to sign the LPA and still adhere to the current social distancing rules and we are guiding clients through this process.

A Lasting Power of Attorney can provide you, in these uncertain times, a sense of certainty and is more beneficial to use than ever before.

For more information on Lasting Powers of Attorney, contact our friendly Private Client team today on 01908 660966 / 01604 828282 or email PrivateClient@franklins-sols.co.uk.