Choosing an attorney for your Lasting Power of Attorney is one of the most important decisions you will make in your estate planning journey. A Lasting Power of Attorney is a legal document that allows you to appoint someone you trust to manage your affairs if you lose mental capacity. Unlike a standard power of attorney, which ends if you become incapacitated, an LPA remains valid precisely when you need it most. However, the success of your LPA depends entirely on selecting the right person or people for the role. This guide outlines the key questions to ask yourself and potential candidates when choosing an attorney, ensuring your wishes are protected and your affairs are managed by someone truly capable of handling the responsibility.
Key Facts
- The location of your attorney matters more than many people realise.
- Never assume someone will accept the responsibility of being an attorney.
- Many people have misconceptions about attorney powers under a Lasting Power of Attorney.
- If you are appointing multiple attorneys, their ability to work together becomes critical.
- Many people appoint only their spouse as their sole attorney.
Do They Live Close Enough to Act Effectively?
The location of your attorney matters more than many people realise. An attorney needs to be able to act swiftly and manage your affairs practically, which becomes difficult if they live far away or in another country. If your attorney cannot easily access your documents, attend medical appointments, visit your home, or meet with healthcare providers, delays and complications will follow.
Consider whether potential attorneys have the geographic proximity to fulfil the role effectively, particularly if you have multiple attorneys. Some responsibilities simply cannot be handled remotely. A local attorney can respond quickly to urgent matters, liaise with medical teams, and maintain ongoing oversight of your situation.
Are They Willing and Able to Accept the Role?
Never assume someone will accept the responsibility of being an attorney. Have a frank conversation with each candidate about what the role entails and whether they are genuinely willing to take it on. Some people feel honoured by the request but may underestimate the time and effort required. Others may feel pressured and reluctant but say yes out of politeness. It is far better to discover during these conversations that someone cannot or will not accept the role than to find out after you have lost capacity.
Being an attorney is not passive. It requires active management, decision making, and often navigating complex situations involving money, healthcare, and sometimes family tensions. Only appoint those who truly understand and accept this responsibility.
Do They Understand What an Attorney Can and Cannot Do?
Many people have misconceptions about attorney powers under a Lasting Power of Attorney. A crucial misunderstanding is that attorneys have immediate access to your money or can act straight away. In reality, attorneys appointed under a Property and Financial Affairs LPA can only act once you have lost mental capacity or given explicit consent. Until that moment, you retain complete control.
Understanding the two types of Lasting Power of Attorney is also essential. A Health and Welfare attorney handles medical decisions and care choices, while a Property and Financial Affairs attorney manages money and assets. Ensure your potential attorneys understand which type they are being appointed under and what their powers actually mean in practice.
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Can They Work Well with Co-Attorneys?
If you are appointing multiple attorneys, their ability to work together becomes critical. You have two options: attorneys can be appointed jointly, meaning all must act together on every decision, or jointly and severally, meaning they can act together or independently. Jointly appointed attorneys must reach consensus, which is protective but can be cumbersome. However, if one attorney becomes unavailable through death, illness, or being unreachable, the others cannot act at all, leaving you potentially unprotected.
Jointly and severally appointed attorneys offer flexibility, but require high levels of trust and clear communication. Consider the personal relationships between your chosen attorneys. Will they communicate openly? Can they resolve disagreements? Do they share your values and priorities? Appointing family members or close friends who have longstanding conflicts is a recipe for problems when decisions must be made quickly.
Have You Considered Plan B?
Many people appoint only their spouse as their sole attorney. This creates a serious vulnerability. One spouse will inevitably die first, leaving the survivor without an attorney precisely when they are most likely to need one. At that point, applying for a new LPA becomes difficult, time consuming, and potentially impossible if the surviving spouse has already begun experiencing capacity issues.
Effective planning means thinking beyond the obvious choice and considering successor attorneys or co-attorneys. You might appoint your spouse as primary attorney with an adult child as backup, or appoint both jointly and severally so that if one becomes unavailable, the other can continue acting. This ensures continuity of protection across your entire lifetime, not just until the first crisis occurs.
Do They Have the Integrity and Judgment to Manage Your Affairs?
The legal requirement is simple: anyone aged 18 or over with mental capacity can be an attorney. However, the practical requirement is more demanding. Your attorney needs sound judgment, financial literacy, emotional resilience, and absolute integrity. They may face difficult decisions about your care or spending, potentially under family pressure. They need to keep records, understand their legal obligations, and sometimes push back against others.
Character matters here. Are they honest? Do they make good decisions? Can they resist pressure? Have they managed their own affairs responsibly? Will they prioritise your wishes over their own interests or those of other family members? These qualities are harder to assess than legal eligibility, but they determine whether your LPA actually protects you or creates problems.
For official guidance, see the gov.uk guidance on choosing an attorney.
Please note: Lasting Powers of Attorney apply in England and Wales only. Different rules apply in Scotland and Northern Ireland.
Frequently Asked Questions About Choosing Your Attorney
Do I need to appoint the same people for both types of LPA?
No. You can appoint different attorneys for your Health and Welfare LPA and your Property and Financial Affairs LPA. You might appoint a financially capable adult child to manage money and property, whilst appointing a family member more involved in your healthcare for the Health and Welfare LPA. Each LPA operates independently, so different attorneys for different types of decisions is perfectly acceptable.
Can I appoint a professional attorney such as an accountant?
Yes. Professional advisors can bring expertise and impartiality, particularly if family relationships are complicated. However, professional attorneys typically charge fees, which may reduce the assets available for your care. You can also appoint a professional alongside a family member, combining trusted relationships with professional expertise.
What questions should I ask potential attorneys about their understanding of the role?
Ask them to explain, in their own words, what an attorney can do, when they can act, and what responsibilities they would have. Ask how they would handle disagreements with other attorneys or family members. Ask whether they feel confident managing money or medical decisions. Their answers reveal whether they truly understand the commitment.
Should I appoint my adult children as joint or jointly and severally?
This depends on whether you need consensus on decisions or flexibility to act independently. Jointly appointed attorneys must agree on everything, which is protective but slow. Jointly and severally allows faster decisions and ensures continuity if one becomes unavailable. Consider your family dynamics and the likelihood of disagreement. If your children communicate well and share your values, jointly and severally offers better protection.
What if someone is willing but I doubt their ability to manage finances?
You can limit their powers through instructions and preferences in a Lasting Power of Attorney. You might restrict an attorney’s ability to make major financial decisions, or require them to consult an accountant or other family members. You can also appoint someone more financially capable as a co-attorney.
Who should sign as certificate provider?
A certificate provider is a person independent from both you and your attorneys who confirms that you have mental capacity and are not being pressured into creating the LPA. Certificate providers have specific rules and responsibilities. Choosing a good certificate provider adds another protective layer to your Lasting Power of Attorney.
TL;DR: How to Choose the Right Attorney for Your LPA
Selecting an attorney for your Lasting Power of Attorney requires more than trust: it demands practical assessment of location, capability, willingness, and character.
- Choose an attorney who lives close enough to act effectively and has the time and willingness to manage your affairs properly.
- Have explicit conversations about the role, ensuring potential attorneys understand their powers and responsibilities before they agree.
- Appoint multiple attorneys or successors to avoid leaving yourself unprotected if your primary attorney becomes unavailable.
- Select people who can work together, communicate openly, and prioritise your wishes over their own interests.
- Verify that potential attorneys understand the specific LPA type they are being appointed under and the practical decisions they will face.
More From Elwyn & Mabel
Creating a Lasting Power of Attorney is one of the most important steps in planning for the future. Download the free Lasting Power of Attorney Checklist for a step by step guide to getting your LPA in place, explained in plain language.
For personalised guidance on creating a Lasting Power of Attorney or any aspect of estate planning, book a free consultation with Elwyn & Mabel. The team will answer questions, review individual circumstances, and help put the right plan in place.