LPAsReplacement Attorneys and How They Work

When a person makes a Lasting Power of Attorney (LPA), they need to consider that their attorneys’ circumstances can change and an attorney may become unable or unwilling to act. To address this, the appointment of replacement attorneys is allowed.

This article explores the role of replacement attorneys, how they operate and the practical considerations.

What is a Replacement Attorney?

A replacement attorney is a person nominated to step in if one or more of the original attorneys under an LPA can no longer act. Replacement attorneys cannot temporarily replace an attorney e.g. if an attorney is away on holiday. If the replacements step in, the change is permanent.

When Do They Step In?

Replacement attorneys only start acting if an original attorney:

• Dies
• Loses mental capacity
• Disclaims their appointment
• Is declared bankrupt (for property and financial affairs LPAs)
• Is divorced or ends a civil partnership with the donor (if the attorney is the donor’s spouse or civil partner, unless the LPA states otherwise)

The situation will also vary depending on whether original attorney was appointed solely or if there were multiple original attorneys

Replacing a Sole Attorney

Replacement attorneys will start acting as soon as the original attorney is no longer able to act.

Replacing Attorneys Acting Jointly

If attorneys are appointed jointly, the loss of one attorney means remaining attorneys cannot continue to act. The loss of one attorney means the replacement attorneys will start acting. Unless the LPA states otherwise, the replacements will also act jointly, if there are multiple.

Replacing Attorneys Acting Jointly and Severally

If original attorneys are appointed jointly and severally, there is more flexibility. A joint and several appointment means that if one attorney can no longer act, the remaining attorneys can continue to act. If the LPA is silent, the loss of one attorney means the replacement attorney(s) will act alongside the remaining original attorneys.

The LPA can state otherwise, common provisions include:

• Replacement attorneys are not to act until all original attorneys are unable
• A certain order is to apply to how the replacement attorneys replace the original attorneys.

It must be noted, however, that a replacement attorney can only replace an original attorney, they cannot replace another replacement attorney.

Examples:

1. An LPA appointing the donor’s son and daughter as attorneys and their son-in-law and daughter-in-law as replacements could state that the daughter-in-law is to replace the son when he can no longer act and the son-in-law replaces the daughter – this would be valid.
2. An LPA appointing three siblings as attorneys and three friends as replacements could state that friend 1 replaces the first original attorney who is unable to act, friend 2 replaces the second original attorney who is unable to act, and friend 3 replaces the third – this would be invalid.
3. An LPA appointing a spouse as sole attorney and a son and granddaughter as replacements with provisions that if the wife is unable to act, the son would replace her and if the son was unable to act, the granddaughter would replace him – this would be invalid.

Revocation and Changes

It would be possible to revoke the appointment of a replacement attorney by a deed of revocation if the donor changes their mind. This may have further implications though, such as if the replacement attorney is appointed jointly. It is likely clearer if possible to create a new LPA in this circumstance.

If the donor wishes to add new replacement attorneys a new LPA must be created. The original LPA cannot be amended once registered.

Conclusion

The appointment of replacement attorneys within an LPA provides flexibility and ensures that the donor remains protected even if original attorneys are unable or unwilling to act. It is crucial to draft clear and valid provisions regarding the appointment of replacement attorneys and careful drafting is needed to ensure the donor’s wishes are effectively met.

 

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