When making a Lasting Power of Attorney (LPA), you should consider including a replacement attorney in case the original appointee dies or can no longer act.
Making an LPA is a way of giving someone else the power to act on your behalf in respect of your financial affairs.
At the time of signing the LPA, the person signing (the donor) must be fully aware of what they are doing, so it is important to put the document in place before someone loses mental capacity.
There are two different LPAs, one for health and welfare matters and another for financial affairs. A donor can make one or both types of LPA, and can choose more than one attorneys for each.
The document can specify exactly what the attorneys are allowed to do, and limit them in their actions.
The attorneys will step in to act on behalf of the donor when he or she becomes unable to manage their own affairs. The donor can also ask an attorney to act for them in respect of their property and financial affairs as a matter of convenience, for example so that they don’t have to make the journey to the bank.
What happens when a donor dies
If the donor dies, then the LPA immediately ceases and the attorneys are no longer authorised to carry out any transactions. They are required to send the LPA document and any certified copies of it to the Office of the Public Guardian (OPG) together with a copy of the death certificate.
What happens when an attorney dies
If the attorney dies, there are a number of possible outcomes. If only one attorney was appointed, with no replacement named, then the donor will need to make a new LPA, if they have the mental capacity to do so. If they aren’t capable, then application will need to be made to the OPG to appoint a deputy.
Where the LPA names more than one attorney, specifying that they can act “jointly and severally”, then the remaining attorney(s) can continue to act.
Where the LPA names more than one attorney, but requires them to act “jointly”, ie. they are all required to make decisions together, then the LPA ceases on the death of one attorney as the joint attorney unit no longer exists.
If a replacement attorney was named, then they will take the place of the original single attorney, or of an attorney who was acting jointly and severally.
Where attorneys were acting jointly, then the replacement will take the place of all of the previous attorneys, ie. the deceased attorney and any others named with them.