Lasting Powers Of Attorney: Replacement Attorneys – What You Need To Know

What is a Lasting Power of Attorney?

A Lasting Power of Attorney is a document that allows you to appoint a person/people to act on your behalf should you be unable to make decisions for yourself in relation to Property and Financial affairs or Health and Welfare.

It should be noted that the Property and Financial Lasting Power of Attorney may be used when you are still able to make decisions yourself, if you consent to this.

The Health and Care decisions Lasting Power of Attorney can only be used if you are deemed to have lost mental capacity. For more information on the importance of putting in place a Health and Welfare Lasting Power of Attorney see here.

What is a replacement Attorney?

The people that you appoint to act on your behalf, are called Attorneys. You can appoint up to four people to act on your behalf and can choose how they are to make decisions together.

It is therefore important to consider what should happen if your Attorneys become unable to make decisions on your behalf. You may appoint replacement Attorneys to be able to act if the original Attorneys cannot act.

You may also specify when the replacement Attorneys can step in and act, and if they are to replace a specific Attorney or only step in if all of the original Attorneys become unable to act.

When are they needed?

The original Attorneys may not be able to act for a number of reasons, including; death, mental incapacity, bankruptcy, or choosing not to take up their position as Attorney.

If this was to happen, it could render you without an Attorney capable of acting on your behalf if you had not appointed a replacement Attorney.

If you did not appoint a replacement Attorney and one of the above situations happened, you would need to make a new Lasting Power of Attorney. However, if you had lost capacity and were unable to make a new Lasting Power of Attorney, an application to the Court of Protection would need to be made to appoint a Deputy to be able to make decisions on your behalf.

How can they act?

The replacement Attorney may not act whilst the original Attorneys are able to unless you have specified that they may replace a specific Attorney. For example, the children of an Attorney are to replace them should they be unable to act.

If the replacement Attorney is to step in and act, the default position is that they act together either with co-replacements or other original Attorneys, dependant on what you have included within the Lasting Power of Attorney. This means that all of the Attorneys capable of acting must make all decisions jointly. This can be changed, and you may decide that you would like the Attorneys to be able to act jointly and severally instead. This means that they can make decisions together and on their own.

The Attorney whether original or replacement, must act in accordance with the Mental Capacity Act 2005, and act in your best interests.

Please contact a member of our team of experts for advice and assistance in preparing Lasting Powers of Attorney.