Using Power of Attorney : Jointly and Severally

If you are thinking about having Power of Attorney set up, you many be wondering: How many Attorneys should I have? Should they be appointed to work together jointly in all respects? And what consequences would this have.

Read more on what Power of Attorney means and the reasons why you should think carefully about how  you appoint your Attorneys.

1) Summary in 30 Seconds

  • Power of Attorney is a legal binding arrangement wherein you appoint one or more individuals to handle your affairs, in the event that you are unable to do so.
  • You can appoint as many Attorneys as you like, most people choose to have two.
  • Problems can arise between Attorneys when there are differences of opinion. It’s important to think carefully about how your Attorneys will work together. 
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2) What is Power of Attorney?

Power of Attorney is a legal document that gives one or more individuals the power to manage either your financial affairs or the management of your day-to-day care and health care decisions. This could include:

  • Managing bank accounts
  • Receiving income or paying bills on your behalf
  • Managing your investments
  • Selling or buying a property
  • Finding and moving you into a long-term care facility
  • Deciding on health care or treatment options
  • Managing your day-to-day care : clothes, meals, activities and so on

Many people put this provision in place in the event that they can no longer handle their affairs, either due to old age, failing health or some other reason. Lasting Power of Attorney is a version of this instrument that only comes into effect once the “Donor” (subject of the Power of Attorney) has lost mental capacity.  

But mental incapacity isn’t the only reason why people set up Lasting Power of Attorney. Many people have this document in place when they would like an Attorney to handle their affairs under their supervision. Others may preemptively have it in place if they are planning to go abroad for an extended period of time, or are about to undergo a serious operation. Some individuals may be able to make decisions, but need assistance to carry out their wishes. This is something that can be specifically catered for with the right type of Power of Attorney.

This document can be as restrictive or as flexible as you would like in terms of what powers you grant your Attorneys. 

Read our comprehensive guide to Power of Attorney here.

Types of Power of Attorney

  • Financial and Property Affairs. This covers all your affairs related to property, assets and money.
  • Health and Wellbeing. This can cover all your healthcare, treatment and lifestyle needs.
  • Ordinary Power of Attorney. Unlike Lasting Power of Attorney, which gives your Attorney’s authority to manage your affairs for an indefinite period of time, Ordinary Power of Attorney is designed to give an Attorney authority to perform specific tasks on your behalf in relation to your financial affairs only.
  • Enduring Power of Attorney. You may still hear Power of Attorney referred to in this way. It was replaced by Lasting Powers in 2007, although E.P.A.’s created before that date are still valid and usable. 
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    3) What Does Jointly and Severally Mean?

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    Choosing your Attorneys is a big decision. Many people will choose the family member closest to them, such as a spouse or their children. Even so, it’s important that everybody knows what this appointment could involve to ensure they are prepared to handle the responsibilities. 

    Being an Attorney is a time commitment. It also requires handling a fair amount of admin duties, and it could involve making difficult decisions regarding the health and wellbeing of your loved one. 

    For this reason, you might choose to appoint more than one Attorney, in order to share the workload and responsibility of making decisions. 

    An L.P.A. allows you to choose the way in which your Attorneys will work together.

    • Acting Solely – This means both Attorneys can make decisions of sign off on things alone, and are not required to seek the permission of the other Attorney.
    • Acting Jointly – This means every decision, big or small, must be signed off by all the Attorneys. 
    • Acting Jointly and Severally – This means the Attorneys have the ability to make decisions both together and alone. This often saves time and allows the Attorneys to perform more mundane tasks, such as paying household bills, alone without needing the other Attorney’s signature. However, it ensures that big decisions are decided and signed off on together. 
    • Jointly in Some, Severally in Some – The “Donor” may have specific wishes regarding what she would like her Attorneys to do together and what is acceptable for them to handle alone. There is a provision in an L.P.A. that allows them to specify this. 

    For most people, these terms are unfamiliar and it can be confusing at first. It can also be hard to know what arrangement would be best for your Attorneys. So in the next section, we will break down what factors you need to consider before making a decision.

    4) Working Together as Attorneys

    When deciding what arrangement would work best for your Attorneys, consider these things:

    • The responsibilities involved. First of all, think about what matters you want your Attorneys to handle. Are they fairly mundane tasks with limited consequences, or would it involve making difficult decisions? For example, will your Attorneys be managing costly assets or property? Would they be making serious decisions regarding your healthcare or living situation?
    • The abilities and constraints of your Attorneys. It is likely that your Attorneys may differ in terms of their other responsibilities and commitments. This could influence the extent to which they can act as Attorney, and you may want to take this into consideration. If one Attorney is prepared to carry a heavier load when it comes to Attorney duties, you may opt to have Attorneys appointed Jointly and Severally.  This would also allow for changing circumstances of your Attorneys, as it allows them to decide between themselves what tasks they could sign off on alone, and which would require the other Attorney’s in-put or approval. 
    • Possible issues that might arise. The majority of people choose family members to be their Attorneys. It is normal that family members can have differences of opinion as well as different ways of doing things. Ask the persons who are going to be your Attorneys how they feel about different matters, such as how to manage money or how they would make healthcare decisions. By knowing in advance the differences between your Attorneys, you can figure out the best way for them to work together. 

    While it is important that your Attorneys make choices always within your best interests, an L.P.A. must also be workable. That means not creating an exhaustive list of restrictions for what an Attorney can and can’t do. It also means deciding how your Attorneys can work together comfortably, solve disagreements swiftly and handle your affairs properly.

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      5) Should You Use a Solicitor?

      Many people are able to successfully register their Power of Attorney without additional legal help. The Office of the Public Guardian, the body that governs the use of L.P.A.s also provides a helpful written guide to filling out the forms properly and sending them off for registration. So why pay a solicitor to do this for you? It really depends on your circumstances

       

      Your parent or other loved one has already been diagnosed with a degenerative disease like Dementia or Alzheimer’s. Just because they are already struggling with the symptoms of this illness does not mean they do not already lack the mental capacity to make an L.P.A. However, time is of the essence. You do not want to procrastinate on having these documents registered so that they will be usable in the very near future. Setbacks and delays due to issues filling out the forms or even having them returned due to errors can sometimes mean it is too late.

       

      Using a solicitor: You will have a dedicated person who will work swiftly to have these documents created and sent off to the Public Guardian as soon as possible. If there are questions as to your loved one’s capacity, they will know the necessary steps needed to take in order to ensure the L.P.A. is valid.

       

      The L.P.A. appoints more than two Attorneys.

      As we have seen above, there can be challenges to even two Attorneys working together, and disagreements or issues are to be expected at some point. The “Donor” will need to think carefully about what arrangement works best for the Attorneys. If there are more than two appointed, this becomes increasingly complicated.

       

      Using a solicitor: You will benefit from expert legal advice on the merits and drawbacks of appointing multiple Attorneys. They will warn you of the potential dangers and adjustments you might need to make in your document to make it usable.

       

      You are including numerous specifications or restrictions. It is normal that you might have some specific requests or would like to restrict your Attorneys from doing certain things. After all, they are going to be responsible for your finances, your physical wellbeing, or even both. However, poorly thought-out or badly worded instructions in your L.P.A. can make it very difficult for your Attorneys to use.

       

      Using a solicitor: By having a solicitor draft your L.P.A., you can be sure that they will flag anything questionable and advise you on proper wording. They can also highlight any possible areas where your restrictions will make it difficult for your Attorneys to handle your affairs.

       

      Your situation is complex and your Attorneys might need ongoing help or legal advice. You can’t prepare for every eventuality, and there may come a time when your Attorneys need legal advice or assistance to continue on caring for you and your affairs.

       

      Using a solicitor: By having your L.P.A. drafting by a solicitor, you have started a professional relationship with a legal expert who has a detailed knowledge of your situation and your Attorneys. If any issues should arise over the years, they will know who to turn to.

      Ultimately, whether to instruct a solicitor or not is a personal decision and will depend on your needs. Before you embark on drafting your L.P.A. alone, why not speak to a legal advisor, who can answer your questions?

      Need Help?

      Sources:

      The Office of the Public Guardian – Official Website : https://www.gov.uk/government/organisations/office-of-the-public-guardian

      Making an L.P.A. : https://www.lastingpowerofattorney.service.gov.uk/home