A guide to LPA replacement attorneys
What is a replacement attorney in an LPA? Do I need replacement attorneys? How and when do replacement attorneys step in and act?
This article provides an outline of the important benefits of choosing replacement attorneys, to help you make the most of your LPA and choose the right people to look after your interests.
An LPA is a legal document which allows you (“the donor”) to appoint one or more people (your “attorneys”) to help you make decisions or to make decisions on your behalf.
In this article, we provide an overview of the option to appoint replacement attorneys and why they are important.
What is a replacement attorney?
Replacement attorneys are the people you choose to step in and take the place of one of your original attorneys, if they can no longer make decisions on your behalf.
You can learn more about what attorneys do and guidance on who to appoint here.
Do I need to appoint replacement attorneys?
You can choose your replacement attorneys in Section 4 of your LPA. This section is marked as ‘optional’ because it is not a mandatory requirement that you have replacement attorneys.
However, it is having replacement attorneys can help to protect your LPA. This is because, your LPA should still work if an original attorney can no longer act on your behalf.
If you have no replacement attorneys and only one original attorney and they can no longer act on your behalf, your LPA will no longer work.
If you have no replacement attorneys and you have original attorneys who must make all or some decisions ‘jointly’ together (as opposed to ‘jointly and severally’) and one of them can no longer act, the rest of your attorneys will not be able to make those joint decisions.
In both of these instances, your LPA cannot be used and, if you do not have mental capacity at that point, someone you know will have to apply to the Court of Protection to get the power to act on your behalf (usually through an application to be your ‘deputy’).
This can be expensive and will usually take a long time.
Who can be a replacement attorney?
The requirements to be an attorney are the same for replacement attorneys. This means that the replacement attorney must be 18 or over and have mental capacity, when you sign your LPA.
A person cannot be both your one of your original attorneys as well as a replacement attorney.
The rules regarding the Disclosure and Barring Service’s barred list apply similarly to replacement attorneys, so that it is a criminal offence for someone on the list to be your attorney – unless they are a family member and not getting a fee to be your attorney.
When do replacement attorneys step in and act?
A replacement attorney can only step in if the original attorney they are replacing is permanently unable to make decisions because they:
• lost mental capacity themselves
• decided they do not want to act as your attorney anymore (called ‘disclaiming their appointment’)
• became bankrupt or subject to a debt relief order (provided they were an attorney under a financial LPA)
• were your wife, husband or civil partner but your relationship has legally ended.
A replacement attorney cannot temporarily stand in for an original attorney who is still able to act (for example, because the original attorney is on holiday).
A replacement attorney can also not replace another replacement attorney.
How do replacement attorneys step in and act?
Where your original attorneys act ‘jointly and severally’
If you have more than one replacement attorney in your LPA, they will all start acting at the same time, unless you have appointed your original attorneys to act jointly and severally and stated the order in which your original attorneys will be replaced.
Where your original attorneys are appointed to act jointly and severally, replacement attorneys usually step in if one of the originals can no longer act. The replacement attorneys and any remaining original attorneys can then make decisions together, jointly and severally.
Where your original attorneys act ‘jointly’ or ‘jointly for some decisions, jointly and severally for other decisions’?
In this instance, it is important to have replacement attorneys. If one attorney can no longer act on your behalf, all your other attorneys must stop making any joint decisions because joint decisions require unanimous agreement amongst the attorneys.
In this circumstances, your replacement attorneys step in to make the joint decisions. Otherwise, your LPA will stop working.
Complications can arise if you wish to appoint attorneys and replacement attorneys and you do not state how they are to make decisions together or if you state they are to make decisions jointly. It is advised you seek legal advice in these instances, to ensure your LPA continues to operate and work well for you.