A Lasting Power of Attorney (LPA) is an important legal document so the job of being an attorney is equally important. In some cases, the donor might decide to share the burden between two or more attorneys. But what happens if joint attorneys under an LPA fall out?
Types of Attorney Arrangements
First, it’s essential to understand the different ways attorneys can be appointed:
- Jointly: Attorneys must make all decisions together and agree unanimously.
- Jointly and Severally: Attorneys can make decisions together or independently.
- Jointly for Some Decisions, Jointly and Severally for Others: Specific decisions must be made together, while others can be made independently.
Joint Attorneys
When two or more attorneys have been appointed to act jointly, they will have to agree unanimously on all decisions. This will be for the simplest of things such as paying the bills to selling a house.
If the attorneys get on this is all well and good but, if there are differences of opinion or the attorneys fall out, as can so often occur in pressure situations, this could make life difficult for all concerned. It is important also to remember that attorneys must remember the rules for acting as an attorney.
The donor must think very carefully about who they are appointing and why they are appointing them. Very often a parent will appoint all the siblings in order to be fair but, this may not be the most sensible decision. The advice is to choose the person who is most capable of doing the job, i.e. perhaps the one who is a professional in their work life.
Also, it is important to take notice of whether the children get on well generally. If a brother and sister, for example, don’t get on then appointing them to work together may make the rift deepen. In which case, ultimately, it will be the donor who suffers because disputes may hinder the decision-making process.
If a joint attorney can no longer act or dies, the LPA will fail unless there is a replacement attorney appointed. The remaining attorney cannot act on their own.
Joint and Several
In this scenario, the attorneys can make decisions together or independently. There is no need for both attorneys to agree or get consent from the other for them to act. This can work well but, again it can cause problems if there are trust issues.
The other problem is that one attorney can make a decision independently and not inform the other attorney or keep them in the loop. The other attorney might think that they have a right to be kept informed but, this is not the case. If one of the attorneys, for example, decides to sell a property and instructs a solicitor, they will be the client so the solicitor is under no duty to report to the other attorney. Likewise with an estate agent, there is no duty for them to keep an other attorney informed.
If a joint attorney can no longer act or dies, then the remaining attorney can carry on acting on their own.
Potential Conflicts and Their Consequences
When attorneys are required to act jointly, disagreement can lead to significant issues, including:
Decision-Making Stalemate: If attorneys can’t agree, decisions cannot be made. This can be particularly problematic in urgent situations, such as selling a property to pay for care or making medical decisions.
Legal Implications: A deadlock among attorneys can render the LPA ineffective, leading to delays and potentially harming the donor’s interests. In severe cases, the Court of Protection may need to intervene.
Stress and Emotional Strain: Disputes can cause considerable stress for everyone involved, including the donor if they are aware of the conflict. Family relationships may also suffer.
Resolving Disputes
Here are some steps to resolve conflicts among joint attorneys:
- Communication: Open and honest discussion is the first step. Attorneys should try to understand each other’s perspectives and find common ground.
- Mediation: If direct communication fails, a mediator can help facilitate a resolution. Mediators are neutral third parties who assist in negotiating and resolving disputes.
- Court of Protection: If mediation fails, attorneys can apply to the Court of Protection. The court can make the necessary decisions or, in extreme cases, remove one or more attorneys.
Preventive Measures
To avoid disputes, donors can take several proactive steps when setting up an LPA:
Choose Compatible Attorneys: Select people who are likely to work well together. Consider their relationship, communication styles, and ability to cooperate.
Choose a professional attorney: A professional attorney could be appointed alongside a lay attorney. See the Good Practice guide for Professional Attorneys.
Clear Instructions: Provide specific instructions or preferences in the LPA document to guide the attorneys. Clear guidance can help reduce misunderstandings and disagreements.
Consider Professional Advice: Consult a solicitor or legal expert when drafting the LPA. They can offer valuable advice on structuring the document to minimize potential conflicts.
Stop Acting as an Attorney
One of the attorneys could stop acting as an attorney. If the attorneys are joint then, unless there is a replacement, the LPA will become invalid. In this case, if the donor has lost capacity, a deputy would have to be appointed through the Court of Protection.
If you choose to ‘disclaim’ your position as attorney you will need to follow the correct procedure. Here is some guidance from the Office of the Public Guardian (OPG) Stop Acting as an Attorney but, basically you need to fill out form LPA005. The form should be sent to the donor, any replacement attorney and the OPG.
Conclusion
While appointing multiple attorneys can provide a safety net and ensure a broader perspective in decision-making, it also carries the risk of disputes. It is important to understand the potential for conflict and take steps to address and prevent disagreements. This can help ensure that the donor’s interests are protected and that their wishes are respected. If conflicts do arise, there are mechanisms in place, such as mediation and the Court of Protection, to resolve these issues.
