Should I appoint my partner as my sole attorney?
Couples usually wish to appoint their partner as one of their attorneys under a Lasting Power of Attorney (LPA). Occasionally, couples want to appoint each other as their sole attorney so that adult children do not interfere while both parents are fit and well. Appointing your partner as your sole attorney is not recommended if you own your home jointly or as tenants in common.
I understand that passing control about where you live to your children or someone other than your life partner might feel uncomfortable. So, it’s a very sensible move to put your LPAs in place when you have the mental capacity to do so, but your choice of attorneys is crucial. Appointing just one attorney can lead to an extra step in the house buying and selling process if your partner loses capacity, so it is worth considering other options.
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Why is having only one attorney relevant?
Two signatures are required when a jointly owned property is to be sold.
An attorney appointed under a Lasting Power of Attorney cannot sign both for themselves as one of the co-owners and for their partner, husband or wife who has lost capacity in their role as attorney. Some equity release arrangements also require two individuals’ signatures.
How can this be resolved?
There is a workaround using the Trustee Delegation Act 1999. The law allows the co-owning attorney with capacity to appoint a co-trustee to act solely for dealing with the property transfer. Once the property is held by two capable trustees, it can be sold, as a good receipt can be given. The co-trustee can renounce their appointment and step down after the transaction.
Forward planning
To avoid having your partner appoint a co-trustee, appoint an attorney who is not a co-owner or two attorneys with the power to act jointly and severally, for example, your spouse and another person. This means there would be two different individuals available to sign the transfer deed and sell the property.
If you lose capacity and do not want a second attorney involved in your finances, you can restrict their role. However, this could create confusion regarding the scope of the attorneys’ powers, and the Office of the Public Guardian is likely to reject the LPA.
It is possible to make more than one Lasting Power of Attorney to deal with different assets or to appoint different attorneys. Business owners often choose to make one LPA for their business affairs and a separate financial LPA for their personal affairs.
A Lasting Power of Attorney that only comes into effect if you lose capacity is inflexible. If you have doubts about an attorney over-stepping their role, there are Court of Protection safeguards in place, but ultimately, you must feel sure that your chosen attorneys have your best interests in mind.
Your attorneys must understand why they’ve been appointed and the extent of their powers. Our guide to Lasting Powers of Attorney can be downloaded here from the resources section on our website.
If you have appointed a sole primary attorney, we recommend you review your Lasting Power of Attorney for Property and Finance. Let’s discuss your thoughts and wishes, and we can explain your options.
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