Key Facts
- When you appoint attorneys jointly, all of your appointed attorneys must act together on every single decision.
- When you appoint attorneys jointly and severally, your attorneys can act together or independently.
- Consider two scenarios that highlight the practical difference.
- You do not have to choose one structure for all decisions.
- One of the most frequent misunderstandings is the assumption that “jointly” is always safer.
When creating a Lasting Power of Attorney in the UK, one of the most critical decisions you will make is how to appoint your attorneys. The distinction between appointing attorneys “jointly” versus “jointly and severally” fundamentally changes how your document operates. This choice affects whether your attorneys must act together on every decision or whether they can act independently. It is a common area of confusion, yet it determines whether your LPA remains workable when circumstances change. Understanding the difference between joint vs joint and several attorneys in a Lasting Power of Attorney will help you create a document that truly reflects your wishes and protects your interests.
What Does It Mean to Appoint Attorneys Jointly?
When you appoint attorneys jointly, all of your appointed attorneys must act together on every single decision. They cannot make choices independently or separately. This means that if you appoint three children as joint attorneys, all three must be present and in agreement before any action can be taken regarding your finances, property, or healthcare decisions.
The protective advantage of joint appointment is clear. It requires consensus and prevents any single attorney from making unilateral decisions. However, there is a significant practical problem. If one attorney becomes unavailable for any reason, the entire structure collapses. If one attorney dies, becomes incapacitated, travels abroad for an extended period, or simply becomes unreachable, the remaining attorneys cannot act. Your LPA becomes effectively unusable. You would need to create a new Lasting Power of Attorney, assuming you still had the mental capacity to do so.
What Does It Mean to Appoint Attorneys Jointly and Severally?
When you appoint attorneys jointly and severally, your attorneys can act together or independently. Any one of them can make decisions without consulting the others. This structure offers significant practical flexibility, particularly if your attorneys live in different locations, have busy schedules, or if circumstances change unexpectedly.
A jointly and severally appointment means that if one attorney becomes unavailable, the others can continue to act. If one attorney dies, the remaining attorneys carry on without needing to create a new LPA. If one attorney moves abroad or becomes ill, decisions can still be made. This flexibility makes the document far more likely to remain functional throughout your life.
The trade off is one of trust and oversight. Jointly and severally appointment requires you to have complete confidence in each attorney. There is less built in protection against one attorney acting in their own interest without consulting the others. You are relying on the integrity and good judgment of each person you appoint.
What Is Practical Differences and Real world Scenarios?
Consider two scenarios that highlight the practical difference. In the first, you appoint your two adult children as joint attorneys. One year later, your daughter moves to Australia for work. Your son needs to pay your bills, arrange repairs to your property, and handle correspondence. He cannot act alone. He must wait for your daughter to return, establish calls across time zones to discuss every decision, or try to send documents internationally for her signature. Even simple matters become complicated.
In the second scenario, you appoint the same two children as jointly and several attorneys. Your daughter moves to Australia. Your son can continue to manage your affairs without delay. When significant decisions arise, he contacts his sister to discuss. When she returns to the UK, she can take an active role again. The document remains practical regardless of circumstances.
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What Is A Hybrid Approach: Combining Both Structures?
You do not have to choose one structure for all decisions. Many people benefit from a hybrid approach. You might appoint your attorneys jointly and severally for routine financial matters such as paying bills and managing accounts. However, you could require them to act jointly for significant decisions such as selling your home, making substantial gifts, or moving to residential care.
This balanced approach provides flexibility for everyday matters while preserving consensus on decisions with major life implications. It requires careful drafting to avoid contradictions that might confuse your attorneys or cause the Office of the Public Guardian to reject your application. The OPG processes approximately 3,000 LPA applications per day, and many are rejected due to conflicts between the attorney structure and the instructions and preferences in a Lasting Power of Attorney.
What Is Common Mistakes and How to Avoid Them?
The most frequent misunderstandings is the assumption that “jointly” is always safer. Whilst it does require agreement, it also creates significant practical risks. If your joint attorneys cannot act, your LPA becomes worthless when you may need it most.
Another mistake is creating a document without considering backup plans. If you appoint joint attorneys with no replacement attorneys named, and one becomes unavailable, you have no protection. Naming successor attorneys or replacement attorneys is essential. If your first-choice attorneys cannot act, your backup appointments allow the LPA to function.
People also sometimes create jointly and severally appointments without clear instructions about how they want their attorneys to work together. You can include detailed instructions and preferences that guide your attorneys to consult each other on significant matters, even though they have the legal right to act independently. For guidance on selecting the right structure, the article on how to choose the right attorney for your LPA provides detailed information. Understanding whether a family member can be your LPA attorney will also help you create a robust document.
Please note: Lasting Powers of Attorney apply in England and Wales only. Different rules apply in Scotland and Northern Ireland.
Frequently Asked Questions About Joint and Jointly and Several Attorneys
Can I change my mind after appointing attorneys jointly?
You can change your LPA at any time while you retain mental capacity by creating a new document. However, you cannot amend an existing registered LPA. If you realise that your joint appointment creates practical problems, the only solution is to create a new Lasting Power of Attorney with a different structure. This is why getting the decision right from the start is so important.
What happens if one of my joint attorneys dies?
If you have appointed attorneys jointly and one dies, the remaining attorneys cannot act. Your LPA effectively ceases to be valid. You would need to create a new Lasting Power of Attorney if you still have capacity. If you no longer have capacity, there is no way to appoint new attorneys, and your family may need to apply to the Court of Protection.
Is jointly and severally appointment risky if one attorney acts without consulting the others?
Whilst there is a theoretical risk that one attorney could act without consulting the others, in practice you can reduce this risk through clear instructions and professional guidance. You can require your attorneys to report to each other, maintain detailed records, and provide regular statements. Building trust when you choose your attorneys is more important than the legal structure alone.
Can I mix jointly and jointly and several in one LPA?
Yes, you can appoint some decisions to be made jointly and others to be made jointly and severally. For example, routine financial decisions could be made by any attorney independently, whilst selling your home requires all attorneys to agree. This flexibility allows you to tailor your LPA precisely to your needs, though it requires careful drafting to avoid contradictions.
Which structure do estate planners recommend most often?
Jointly and severally is recommended more frequently because it creates a functional document that continues to work even when circumstances change. However, the right choice depends on your family situation, your attorneys’ locations, your personal preferences about oversight, and the decisions you want to protect. There is no universal answer, which is why professional guidance is valuable.
TL;DR: Joint Attorneys vs Joint and Several Attorneys
The choice between joint and jointly and several attorney appointment is one of the most important decisions you will make when creating your Lasting Power of Attorney.
- Joint appointment requires all attorneys to act together, but if one becomes unavailable, the LPA effectively fails and cannot be used.
- Jointly and several appointment allows attorneys to act independently, making the document more practical and flexible in real world circumstances.
- You can use a hybrid approach, requiring joint decisions for major matters and allowing independent action for routine decisions.
- Professional guidance ensures your attorney structure is workable, does not create contradictions, and aligns with your wishes and instructions.
- Getting this decision right from the start prevents problems later and ensures your Lasting Power of Attorney remains functional when you need it most.
More From Elwyn & Mabel
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