Power of Attorney - Should we have two attorneys & 2 replacements? Or 4 attorneys?
in Marriage, relationships & families
2 replies 95 views
My Mum (who still has capacity) had a lasting power of attorney created which listed my Dad as her 'primary attorney', however he has now passed away and she wants to make some changes to all attorneys. We do not need to use the PoA at this time, so she is able to make the changes she wants.
The new attorneys will be four family members, two live closest so it would make sense that they would potentially be the ones making the most decisions if/when the need arose. My first thought was to have those two as the primary attorneys (acting jointly and severally), and the other two as replacement attorneys (also acting jointly and severally). However, none of these people really take "priority" in the decision making process and any one of them could assist if needed. I'll also note, I think this would be a very straight forward PoA, with no specific direction for specific people. And if one or more were to be incapacitated we'd like the PoA to continue without changes with the remaining attorneys.
Also, my understanding is that if one of the primary attorneys is unavailable then the replacements are then given power and any remaining primary attorneys may be unable to act, so I'm conscious that we don't want to take away the ability of one of the primary attorneys if the other (for example) dies.
So, my question is, in this situation is there any benefit to having replacement attorneys? Should we just be making them all attorneys that can act jointly and severally?
I note that I've seen elsewhere people advising to include wording as to what should happen if one attorney were to become unavailable (i.e. that all surviving attorneys can continue to act regardless), but nothing specific on how or where to word it, so if there are any suggestions/guidance that would also be much appreciated.
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The simplest thing to do would be to appoint all 4 to act jointly and severally. If one or more can no longer act duque to death or incapacity the remaining attorneys can carry on as normal.
Thus having two reserve and two primary attorneys does make sense, but in your case, if there is no priority to decision making, it is probably better to have the four attorneys and making all decisions jointly and severally. The ones that live further away don't have to act, but always can if necessary. The times when reserves bcome important is if you (as the donor) always want more than one person to have to make difficult decisions. Then you need a reserve who can step in, but doesn't have to be involved until the number of primary attorneys who can act drops to zero.
My parent's PoA have each other and myself as the primaries, and my daughter as the reserve so that there are always two people who can act for the donor. We did this mainly because of my daughter's age; she's still quite young, but as all decisions are to be make jointly and severally, there is no really point in having her as a reserve. She could have just been appointed as a primary attorney.