A Lasting Power of Attorney (LPA) lets you choose people you trust to make decisions for you if you cannot make them yourself. Many people think carefully about their attorneys, but fewer think about LPA replacement attorneys. This guide explains what replacement attorneys are, when they step in, and how to choose them, so your LPA is more likely to keep working whatever happens.
What Is a Lasting Power of Attorney?
A Lasting Power of Attorney is a legal document that lets you (the “donor”) appoint one or more people (your “attorneys”) to make decisions on your behalf. There are two types: one for property and financial affairs, and one for health and welfare.
An LPA must be made while you have mental capacity. It can only be used once the Office of the Public Guardian (OPG) has registered it. The GOV.UK guide to Lasting Powers of Attorney explains the process.
What Is an LPA Replacement Attorney?
A replacement attorney is someone you choose to step in if an original attorney can no longer act for you. Think of them as a backup plan. They have no authority while your original attorneys are able to act.
Do I Need LPA Replacement Attorneys?
Replacement attorneys are optional, but they are often a good idea. Here is why:
- Continuity: if an original attorney cannot act, a replacement can step in and the LPA can carry on.
- Protecting a sole or joint appointment: if you have only one attorney, or attorneys who must act jointly, the LPA may stop working if one of them can no longer act. A replacement reduces that risk.
- Avoiding the Court of Protection: if an LPA stops working after you have lost capacity, someone may need to apply to the Court of Protection to be appointed as your deputy. That process takes time and costs money.
For example, imagine someone who appoints their wife as their only attorney, with no replacement. If she later becomes unwell and cannot act, the LPA can no longer be used. If he has also lost capacity by then, his family may need to apply to the court for authority to help him.
Who Can Be a Replacement Attorney?
The rules for replacement attorneys are the same as for original attorneys. A replacement attorney must:
- be 18 or over when you sign the LPA;
- have mental capacity to make decisions;
- not be bankrupt or subject to a debt relief order, if the LPA is for property and financial affairs.
In addition, the same person cannot be both an original attorney and a replacement attorney in the same LPA.
When Do Replacement Attorneys Step In?
A replacement attorney can only step in when an original attorney’s appointment ends permanently. This happens if the original attorney:
- dies;
- loses mental capacity;
- decides to stop acting (disclaims);
- becomes bankrupt or subject to a debt relief order (property and financial affairs LPAs only);
- was your spouse or civil partner and the marriage or civil partnership ends, unless your LPA says otherwise.
Replacement attorneys cannot stand in temporarily, for instance while an attorney is on holiday or in hospital for a short time.
How Replacements Work with Different Attorney Arrangements
Attorneys appointed jointly and severally
If your attorneys can act “jointly and severally”, they can make decisions together or on their own. In that case, OPG guidance is that replacement attorneys only step in when none of your original attorneys can act, unless you give different instructions. Until then, the remaining original attorneys simply carry on.
If you would prefer a replacement to step in as soon as any one original attorney stops acting, you can say so in your LPA. However, wording this needs care, because unclear instructions can cause problems at registration.
Attorneys appointed jointly
If your attorneys must act “jointly”, they must agree on every decision. In this case, replacement attorneys matter even more. If one joint attorney can no longer act and there is no replacement, the LPA usually stops working.
A sole attorney
If you appoint only one attorney, a replacement is the only way the LPA can continue if that person cannot act.
Choosing Your LPA Replacement Attorneys
When choosing LPA replacement attorneys, consider:
- whether you trust them and can rely on them;
- how well they understand your wishes and values;
- whether they can make difficult decisions under pressure;
- how well they get on with your original attorneys;
- their age and health, so they are likely to be able to act in future.
Many people choose one or two replacement attorneys. Also, talk to them first, so they know what the role involves.
Frequently Asked Questions
Can I change my replacement attorneys after my LPA is registered?
You cannot add a new attorney or replacement attorney to a registered LPA. Instead, you would need to make a new LPA while you still have capacity.
How many replacement attorneys should I appoint?
There is no set number. However, one or two replacements usually gives a sensible safety net without making things complicated.
Can a replacement attorney replace another replacement?
No. Replacement attorneys step in for original attorneys. If you have more than one replacement, you can use your instructions to say how and in what order they should step in.
The Takeaway
Appointing LPA replacement attorneys helps your LPA keep working if an original attorney can no longer act. As a result, it can save your loved ones time, stress and money later.
A.D.E. Wills prepares LPAs for a fixed fee, shown on our LPAs Pricing page. If you would like to talk through your choice of attorneys and replacements, call us on 01865 507174 or email info@adewills.co.uk. You can also read more about our Lasting Powers of Attorney.
