LPA - Instructions if one joint attorney dies to allow the LPA to continue.

EnglishMohican

I am trying to complete a Finance LPA and a Health LPA. I have the same problem with both.

I am the donor. My wife is the attorney. If she is not fit, then my three adult children take over as replacement attorneys. I have written an instruction allowing them to take some decisions jointly and some severely. So far so good.

Both my wife and I are healthy so it could be a long time before the replacement attorneys are needed and in that time anything could happen. They could fall out - die or simply move much further away etc. That would make the LPA unworkable as in the simple case, joint means all three take the decision or it does not happen.

I wrote the LPA using the web service where there are little help buttons against each question that I have to answer that give guidance. Against the preferences and instructions section that help says :

"In their instructions the donor can state that if one of their attorneys can no longer act, the remaining attorneys can continue to make all the joint decisions. For example, the donor could use an instruction like the one below:

"If one of my original attorneys, Jane Taylor and Robert Smith, is unable or unwilling to act, I then reappoint my remaining original attorneys, Jane Taylor or Robert Smith, as replacement attorney to act solely.""

In the official guide (LP12) it contradicts this and says :

"If you’ve said in section 3 that your attorneys must act ‘jointly’ – so they must agree every decision unanimously – you must not add here that if one stops being an attorney, the others can continue to act."

The example the help provides is not quite correct for my circumstances so I want to write something like "If any of my three replacement attorneys, x,y or z is unable or unwilling to act, then joint decisions may be taken by the two remaining replacement attorneys."

I have asked the OPG help service by email and received a reply that said I could write such an instruction but they  could not help with the wording (I understand why) and then referred me to LP12 - which says I cannot do this.

The telephone help service took 30 minutes to answer and could not then understand what the question was.

Can anyone explain the apparent contradiction between the two guides, both provided by the Office of the Public Guardian. Has anybody had a similar instruction accepted?

All help/comments gratefully received

Savvy_Sue

No, but I would think very carefully about making some decisions joint and some several. What if one of them strongly disagrees with a decision that has to be joint? Will the other two over-rule, or will you have a stalemate? 

Sorry not to be more help. 

Keep_pedalling

Savvy_Sue said:

No, but I would think very carefully about making some decisions joint and some several. What if one of them strongly disagrees with a decision that has to be joint? Will the other two over-rule, or will you have a stalemate? 

Sorry not to be more help. 

I agree, jointly is rarely advisable. I would also make your children full attorneys rather than back- up ones. I would only use back-up attorneys if they were not my direct descendants. If you trust them don’t complicate things with a pile of instructions which could cause the application to fail or the LPA to become unusable. I have used preferences on my health and welfare but no instructions at all. 

EnglishMohican

I am seriously thinking about your comments but just to put part of the other side of the coin, I do not want the situation to occur where one attorney alone decides to turn off my life support and then finds one of the others disagrees when it is too late. This is not so much concern for myself but a concern for the breakdown that could occur between the attorneys. I don't want one feeling guilty because she is blamed for killing me by one of the others and the other feeling she "let me down" by not being there to defend me. Similarly, I can imagine a scenario where one authorises life saving treatment that goes wrong with similar problems. If things go wrong, I want it to be a communal decision with communal blame.

The financial side is slightly less critical but there are threads on here where one sibling is suspicious of another siblings dealings but unable to have any control without going to court - something most families would want to avoid.

I believe I have provided a way to give them individual control over everyday matters but for major decisions, they should have to agree. And if one is strongly against, then they will have to discuss the reasons for the disagreement until they get to a common decision. Being unable to stop something when in a minority is exactly the sort of thing that could break up what is presently a very nice group. If they continue as at present then "joint" comes very naturally.

But that does leave a problem if the situation changes and one moves far away or dies or whatever. There appears to be solutions to that - but I am not quite sure I have understood them well enough.

Keep_pedalling

EnglishMohican said:

I am seriously thinking about your comments but just to put part of the other side of the coin, I do not want the situation to occur where one attorney alone decides to turn off my life support and then finds one of the others disagrees when it is too late. This is not so much concern for myself but a concern for the breakdown that could occur between the attorneys. I don't want one feeling guilty because she is blamed for killing me by one of the others and the other feeling she "let me down" by not being there to defend me. Similarly, I can imagine a scenario where one authorises life saving treatment that goes wrong with similar problems. If things go wrong, I want it to be a communal decision with communal blame.

All I would do in this situation is to make sure your attorneys know what you would want in these situations. For instance my wife and my children know if I have permanently lost my mental capacity then I don’t want to be given any life sustaining treatment fot any other conditions and that I want a DNR instruction to be on my notes to guide medical and care staff without the need to consult an attorney in an emergency situation.

The financial side is slightly less critical but there are threads on here where one sibling is suspicious of another siblings dealings but unable to have any control without going to court - something most families would want to avoid.

I believe I have provided a way to give them individual control over everyday matters but for major decisions, they should have to agree. And if one is strongly against, then they will have to discuss the reasons for the disagreement until they get to a common decision. Being unable to stop something when in a minority is exactly the sort of thing that could break up what is presently a very nice group. If they continue as at present then "joint" comes very naturally.

But that does leave a problem if the situation changes and one moves far away or dies or whatever. There appears to be solutions to that - but I am not quite sure I have understood them well enough.

It’s really a matter of balancing risk. I trust both my children to act correctly if either or both of them have to take charge so I don’t consider it risky to give then the ability to act alone if needed. A far bigger risk would be for the LPA to fail because one could no longer act. 

If your children are at loggerheads then there are risks either way, so in those circumstances I would appoint my most trustworthy child as my primary attorney and the other as a back-up.

Savvy_Sue

I agree that making sure everyone knows your wishes is the most helpful thing you can do. And that can be part of your health and welfare LPA. Then leave it several!

Ms_Chocaholic

My understanding is that if you make attorneys just joint (not jointly and severally) and that attorney dies then the LPA fails.