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Futureproof your LPA

10 Nov 2016

Many practitioners thought that the basis of appointment of more than one Attorney under a Lasting Power of Attorney (“LPA”) was a certainty. That is to say, while there are, in the main, three choices when it comes to appointing more that one Attorney under a LPA, the two that are usually chosen are “Together” and “Together & Independently”.

When Attorneys are appointed “Together” it means that all Attorneys must agree on a decision or all Attorneys must sign a relevant document. However, should one of the Attorneys die, this choice would mean a LPA can become useless as the surviving Attorney can no longer act "together" with the deceased Attorney.

Because of this, many clients decide to appoint their Attorneys “Together and Independently” which means that each Attorney appointed can act on their own when making decisions on behalf of the donor and that the Attorneys can also act together. This means that any one of Attorneys appointed “Together and Independently” can decide on a particular issue.

The Court of Protection were of a similar mind even where the Donor of the LPA included a provision in the LPA allowing the re-appointment of the survivor of two attorneys (originally appointed to act "Together") in the event that one of them died or could no longer act. A LPA, as far as the Court of Protection were concerned, became void on the death of an Attorney in this situation.

However in a recent case the High Court has reversed the Court of Protection’s decision. The High Court found that where the donor of a LPA appointed two Attorneys to act “Together” in important matters with a provision that, if one of the joint Attorneys died or could no longer act, the survivor should act on those matters “Independently”.

This decision demonstrates the care that is needed in drafting a LPA to ensure that they are future-proofed. One error in the wording and the LPA could become void on the death of a joint Attorney!

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