Risks of appointing an unsuitable attorney

When family is not the right choice for a property and finance lasting power of attorney.

A lasting power of attorney (LPA) is often set up with the assumption that a close family member is the best person to act. While this works well for many people, there are situations where appointing a family member can create difficulties, risks, or conflict. In this blog, we explore when a professional or independent attorney may be a better option, particularly in relation to property and financial affairs.

Many people naturally turn to family when appointing an attorney. However, managing someone’s financial affairs can be complex and, in some cases, emotionally challenging. It is important to consider whether a family member is the most appropriate choice for that responsibility.

Common reasons why family may not be suitable

While family members are often best placed to understand personal wishes and values, the reality of acting as an attorney is often more demanding than anticipated. The role is not simply administrative; it involves ongoing responsibility, accountability and sometimes making difficult decisions.

Problems can arise where relationships within the family are strained or where there is a history of disagreement. Even where there is no obvious conflict at the outset, tensions can develop over time and particularly if multiple attorneys are appointed and different views emerge about how finances should be managed. Decisions around spending, investment or the sale of assets can quickly become contentious.

In other situations, the issue is less about relationships and more about practical capability. Acting as an attorney requires time, organisation and a degree of financial confidence. Individuals with a busy professional or personal life may find it difficult to dedicate the necessary attention to the role, particularly if circumstances change or the arrangement continues over many years.

There is also the emotional aspect to consider. Making financial decisions on behalf of a loved one, particularly where mental capacity has been lost, can place significant pressure on the individual involved. This can make it harder to remain objective, especially where decisions may be perceived as restrictive or unpopular among other family members.

Complex or sensitive financial situations

The suitability of a family member as attorney becomes even more questionable where financial affairs are more complex. High value estates, diverse investment portfolios, business interests or international assets can all add layers of responsibility that go beyond straightforward financial management.

In these cases, the attorney may need to take a more active role in overseeing investments, liaising with accountants and financial advisers, or making strategic decisions about the preservation and use of wealth. These are not always straightforward matters and may involve balancing risk, tax considerations and long-term planning objectives.

Where there is already a degree of sensitivity within the family, complexity can act as a catalyst for dispute. Differences in opinion about how assets should be managed, or concerns about transparency, can quickly escalate if there is no clear structure or independent oversight in place.

Risks of appointing an unsuitable attorney

Appointing an unsuitable attorney can have significant and sometimes lasting consequences. At a practical level, poor decision making or delays can disrupt the effective management of finances, leading to missed opportunities or unnecessary financial loss.

Disagreements can damage relationships, sometimes irreparably. Concerns about how an attorney is acting (whether justified or not) can lead to mistrust, tension and in the most extreme cases, a formal legal dispute between family members.

There is also the risk of external scrutiny. The Office of the Public Guardian has the authority to investigate concerns about attorneys and, where issues arise, this can lead to formal intervention. Even in situations where no wrongdoing is found, the process itself can be stressful and time consuming.

Importantly many of these risks arise not from bad intentions, but from a lack of experience, clarity or support. This is why careful consideration at the outset is so important.

When a professional attorney may be appropriate

In circumstances such as these, appointing a professional attorney can provide a greater degree of reassurance. A professional brings independence and objectivity to the role, which can be particularly valuable where there is potential for conflict or where decisions may be closely scrutinised.

Professional attorneys are also accustomed to dealing with complex financial arrangements and working alongside other advisers. This can help ensure that decisions are made in a structured and informed way, taking into account both legal obligations and practical considerations.

Continuity is another important factor. Unlike individuals whose availability or circumstances may change over time, a professional appointment can provide consistency, particularly where the LPA may need to operate over many years.

In some cases, a blended approach can offer the best of both worlds. Appointing a professional alongside a family member allows the day-to-day administration of finances to be handled by someone close to the individual, while key decisions benefit from professional oversight and expertise. This can help manage costs more proportionately, while still ensuring that more complex or sensitive matters are dealt with appropriately and with the benefit of experience.

How we can help

Our private client team regularly advises individuals and families on all powers of attorney matters and the practical considerations involved in choosing and appointing attorneys. We understand that every family situation is different, and careful thought is needed to ensure that the right structure is put in place.

We can help you assess whether a family member, a professional, or a combination of both is the most appropriate option for your circumstances. We also assist with drafting LPAs that include clear guidance, appropriate safeguards and practical provisions to reduce the risk of future issues.

Where required we can act as an attorney, bringing an experienced, independent and measured approach to decision-making.

For advice on LPAs or estate planning, please contact a legal adviser in our private client team at one of our offices – York, Selby, Malton or Pickering.

This article is for general information only and does not constitute legal or professional advice. Please note that the law may have changed since this article was published.