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Who May Be An Attorney (Also Called Donee)?
A donee of a lasting power of attorney must be:
- An individual who has reached 18; or
- If the power relates only to P’s property and affairs, either such an individual or a trust corporation;
- An individual who is bankrupt may not be appointed in relation to property and affairs.
An individual who is bankrupt may not be appointed as a donee of an LPA in relation to the donor’s property and affairs but a bankrupt may however, be appointed as an attorney in relation to the donor’s personal welfare.
If a donee becomes a bankrupt during the attorneyship then the appointment is automatically revoked however, if the attorney is subject to an interim order then the appointment is suspended.
More Than One Attorney
Number of Attorneys
There is no limit to the number of attorneys whom can be appointed, though for practical reasons the greater number the more cumbersome it could become to make decisions on the donor’s behalf and to manage the affairs efficiently.
Joint and several appointments
The instrument may appoint them to act:
- jointly and severally;
- jointly in respect of some matters and jointly and severally in respect of others.
The essential difference between attorneys appointed to act jointly and those appointed jointly and severally is that the authority of joint attorneys can only be exercised collectively, whilst attorneys under a joint and severally appointment can act either together with the co-attorney or entirely independently.
If the instrument makes a joint appointment this will automatically come to an end when any one of the attorneys dies, disclaims or lacks capacity to act as it is no longer possible for the attorneys to act together.
Failure to make any specification will result in a joint appointment.
An instrument used to create a lasting power of attorney:
- Cannot give the donee power to appoint a substitute or successor but
- May itself appoint a person to replace the donee, where an original appointment has ended by a terminating event