I always advise my clients to consider the appointment of replacement attorney(s) when making a Lasting Power of Attorney (LPA), particularly where they are only appointing one main attorney, or their main attorney(s) are a similar age to them. This is a useful mechanism to ensure continuity regarding the management of your affairs, should one of your main attorneys be unable to act in the future. Your replacement attorney(s) will sit on the 'subs bench' until they are required to step in.
It is helpful to understand the "triggers" that activate the appointment of your replacement attorney(s) and the Mental Capacity Act sets out the circumstances where the appointment of a replacement attorney will take effect as follows:
- Your main attorney(s) have died. You will need to send the death certificate for the deceased attorney to the Office of the Public Guardian.
- Your main attorney(s) have disclaimed their appointment. The disclaimer must be completed by the attorney(s) using the prescribed form LPA005 and sent to the Office of the Public Guardian.
- Your main attorney(s) have lost mental capacity. Proof of incapacity such as a letter from the attorney's GP or a capacity assessment provided by an appropriately qualified assessor will need to be sent to the Office of the Public Guardian.
- In respect of a Property and Financial Affairs LPA, your attorney(s) have become bankrupt or subject to a debt relief order.
- If your main attorney was your spouse and you subsequently divorce, their appointment will come to an end. A copy of the decree absolute will need to be sent to the Office of the Public Guardian.
In all of the above circumstances, the original LPA together with any certified copies will need to be sent to the Office of the Public Guardian to be updated. At Ellisons we are experienced in drafting LPAs to suit individual circumstances and we will always advise you on whether you should include replacement attorneys and in doing so we will discuss the scope of authority of your replacement attorneys.
Originally published 3rd July 2023.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
