LPA – jointly and severally
I thought it better to expand out on the issues relating to the attorneys being appointed jointly or jointly and severally. There is also the “hybrid” box, where the detail should be included as to what is jointly and what functions can be done severally.
Jointly means that all attorneys have to agree and sign the document or express their agreement if signing is not required. So long as all the named attorneys are around, not subject to a terminating event and agree, that’s fine and easy to understand. This can be very restrictive, as if one attorney is on holiday or ill, then nothing can happen until the attorney is available again.
Severally means that any one of the attorneys can agree to something on their own and don’t need their fellow attorneys to agree with them or endorse their decision in any way. Clearly this can lead to issues if there is disagreement between the attorneys. However at least something will be happening and if there is a huge disagreement between attorneys about an important issue, they can go to the Court of Protection to arbitrate their disagreement. An application to the Court of Protection is usually expensive and time consuming, but maybe cheaper than later litigation and additionally something is happening at the time.
So in terms of attorney authority that is the choice – either jointly or severally as described above. There is no two out of three, no majority voting, no power of veto, no other kind of combination, nothing else, just jointly or severally or some kind of clearly defined combination in the hybrid box, such as “severally for everything except the sale of my house, which must be done jointly”.
If there is to be a combination of jointly and severally, then it must be done in the hybrid box and must be clear what is to be done jointly and what is to be done severally and that must be written into the hybrid box. It cannot be done in the restrictions box, as it would then be incompatible with a jointly or severally LPA and would be severed.
It can lead to situations that the donor doesn’t really want, as they might like majority voting or someone with a veto etc, but it is not possible. The only way to get close to that is to express something in the guidance, but make sure that it is clearly expressed as a wish and not binding, as if it were too restrictive it will be seen as a restriction and severed. So a wish in guidance can be for example “it is my wish that where at all possible that the majority of the attorneys agree”, this allows for the situation that even if the majority don’t agree, because it is not possible, then the attorneys are still free to act in a severally manner. This is therefore not binding and would not be severed.
Just because it was written in the guidance box does not mean it will be seen as guidance and could be seen as a restriction written in the guidance box and incompatible (with the Mental Capacity Act) restrictions will be severed.
It seems simple – jointly or severally signing only (or the hybrid combination). It doesn’t always fit with what the donor wants, so that is where it gets tricky. But with the knowledge of what is and what isn’t possible, hopefully the careful drafter can get close to what the donor would want and advise the donor appropriately.
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