A Lasting Power of Attorney (LPA) appoints an attorney to assist the donor (person making the LPA) with their property and financial affairs, as well as their health and welfare. The attorney will make decisions on behalf of the donor, either after mental capacity has been lost or with the donor’s consent while they still have capacity. An attorney cannot be forced to act and should be consulted before drafting the LPA.
Every decision made by an attorney will have an impact on the donor. This is why it is critical that an attorney be someone the donor implicitly trusts to act in his or her best interests. If the attorney’s intentions are questioned, they should not be appointed.
When appointing an attorney, it is also important to consider broader factors such as their ability to manage money, a history of debt, or an addiction that has impacted their financial affairs. If any of these concerns a prospective attorney, we would suggest an alternative.
It is common for partners to forget about their spouse when discussing who to appoint as an attorney, as many see themselves as a team that will need to be looked after together. We recommend that a spouse be appointed if they are suitable. Because of the close nature of the relationship, finances and lifestyle choices will be known to each other, allowing the spouse to make decisions with confidence.
We recommend appointing more than one attorney, but no more than four. One reason for this is that the role of an attorney is quite onerous, especially once the donor loses capacity. When more than one attorney is appointed on a joint and several basis, more than one attorney can make decisions and there is less pressure on just one person. Furthermore, if only one attorney is appointed and that attorney is unable or unwilling to act, the LPA will fail unless replacement attorneys are appointed.
If the first appointed attorney/s do not wish to act or are unable to do so for whatever reason, a replacement attorney/s can be appointed. It is a good idea to include replacement attorneys as a safety net in case all of the initial attorneys are unable or unwilling to act. If a replacement attorney/s appointment is required, the LPA must be sent to the Office of the Public Guardian and updated to reflect that the replacement attorney/s are now acting as the main attorneys. This process could take up to eight weeks. In the meantime, the LPA is ineffective. This is especially important with Health and Welfare LPAs because an emergency life-sustaining decision may need to be made.
A donor’s spouse and children are frequently named as their attorneys. It is critical to consider how well they all collaborate. If there is disagreement between the parties, it is not recommended that these parties be appointed. This is important when considering a blended family, such as a spouse who is a stepparent to the donor’s children. A donor should not appoint all of their children so that one or more of them do not ‘feel left out.’ An attorney must be appointed for the right reasons and must be trusted with the donor’s affairs.
To summarise, an attorney must be someone you can rely on to make the best decisions for you. MWQ Estate Planning can act as professional attorneys to manage your property and financial affairs if you are unable to think of an attorney and would like an LPA drafted. We follow strict regulations and will always act in your best interests.
