A lot of people decide to give more than one friend or family member power of attorney. It can lighten the load, add some extra accountability and prevent hurt feelings. But when it comes to filling out the form, there’s a question: do you want to give them ‘joint and several’ or ‘joint’ power of attorney?
Here’s what you need to know.
First things first: what is a power of attorney?
A power of attorney gives someone you trust the power to make decisions for you if you’re not able to make them.
On the form to apply, you’re known as the ‘donor’. The person you’ve chosen to act for you is called your ‘attorney’.
How many attorneys can you have?
Technically, as many as you like. But most people choose between one and four attorneys.
It’s a thousand times easier for your attorneys if you don’t have that many of them. With just two or three, it’s easier for them to work together and keep track of what they’re all doing on your behalf.
Should attorneys make decisions ‘jointly’ or ‘jointly and severally’?
So, what does ‘joint’ power of attorney mean? What about ‘joint and several’?
When you make a power attorney, you can decide how your attorneys should make decisions. You have three options: joint, joint and several, and a mix.
What is a ‘joint’ power of attorney?
With a joint lasting power of attorney, your attorneys can only act if they’re all in agreement. If there is paperwork to sign, they all need to sign it. If there’s a decision to make, they all have to agree.
Pros: This can be a good option if you don’t quite trust one of your attorneys to act wisely in all situations. It means that they can’t act without the other (hopefully more sensible) attorneys to balance them out.
Cons: In practice, having to make all decisions jointly can be a bit of a nightmare for your attorneys. Even simple errands, like paying a bill on your behalf, will need all attorneys to sign. If they don’t all live nearby, it can be a struggle for them to get anything done.
And if one of your attorneys quits or dies, the others can’t act: your replacement attorneys (if you have them) will have to step in. So, replacement attorneys are essential if you’re making a joint power of attorney in the UK.
What is a ‘jointly and severally’ power of attorney?
In a lasting power of attorney, ‘jointly and severally’ means that your attorneys can make decisions together or act by themselves if they need to.
So, one or two attorneys could potentially take care of everything, with the others able to check what they’re doing and chip in every now and again. Or they can do everything together.
Pros: A ‘jointly and severally’ power of attorney is a lot more practical for day-to-day use. Your attorneys can do what they need to do, when it needs to be done. It’s more flexible.
And if one of your attorneys drops out, the remaining attorneys can still act. Your replacement attorneys, if you have them, will simply work alongside them.
Cons: You lose that extra safeguard if you don’t quite trust one of your attorneys (in which case, why are they your attorney?).
The mix: Making some decisions jointly, and others jointly and severally
This one is a little more complicated to set up. Typically, you choose certain decisions that all attorneys must agree on. For example, buying or selling property, or managing investments. For anything else, you let them act independently.
Pros: Gives your attorneys flexibility on most things while ringfencing key assets.
Cons: If one of your attorneys quits, the others can’t make any decisions that you’ve decided should be made jointly. Your replacement attorneys (if you have them) will have to make them instead.
The wording here is also really important. Mistakes can make it nearly impossible for your attorneys to act. So, it’s crucial to get professional help if you’re choosing this option.
Like a power of attorney, it’s best to make your will long before it is needed. After all: when it comes to protecting your family, there’s no time like the present. Click here to make a will online with Beyond today.
How to resolve ‘joint and several’ and ‘joint’ power of attorney problems
Acting as someone’s attorney alongside someone else? It can help to know what to do when things don’t go as planned.
When one attorney pulls out
What do you do if your fellow attorney doesn’t want to act anymore? If the person who made the power of attorney can’t make a new one, you’re in an awkward position.
- If the power of attorney says you need to make one or all decisions jointly… you won’t be able to act as attorney on those decisions without them. The replacement attorneys can step in, if the LPA names any. If not, then you’ll need to explore other ways of helping the person you’re acting for, like becoming a deputy.
- If the power of attorney says you can make decisions jointly and severally… you can still act without them. Again, if there are replacement attorneys, they can step in and help you. They’ll also work jointly and severally.
When there are joint power of attorney disputes
With a joint power of attorney, disagreements can be a real sticking point. Wherever possible, it’s best to talk these out.
In cases where you simply can’t agree, you can apply to the Court of Protection for a one-off decision. You can find out more about this here.
If you think an attorney is abusing their position
If you think the person is in immediate danger, apply for an emergency or urgent court order. For example, if they need emergency medical treatment they cannot consent to.
If the situation isn’t urgent, contact the Office of the Public Guardian. The details are here.