What is a replacement attorney?

12 February 2021

When you make a Lasting Power of Attorney, it's possible to appoint a replacement attorney. This is someone who can step in to act if your original attorney is unable to do so.

By Head of Wills, Solicitor James Antoniou

When Lasting Power of Attorneys came into force in England & Wales in 2007, replacing the Enduring Power of Attorney, a number of changes were introduced. One of the key changes was the ability to appoint replacement attorneys.

When making a Lasting Power of Attorney, the person who is putting the Lasting Power of Attorney (LPA) in place is called the donor. This is because they are giving someone else the power to make decisions on their behalf. The people that they give this power to are called the attorneys.

So what is a replacement attorney? Well, as the name suggests, this is a person named in the Lasting Power of Attorney as a substitute for an original attorney. The replacement attorney is there to step in if the original attorney is no longer capable or willing to act in their role.

Why could a replacement attorney be needed?

There are a number of circumstances where the replacement attorney may need to step in, including if:

  • The original attorney has died but the donor is still alive
  • The original attorney has lost mental capacity themselves
  • The original attorney has decided that they are no longer willing to carry out the role of attorney

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There are also specific circumstances that may require the replacement attorney to replace the original. For example, if the attorney was married or in a civil partnership with the donor at the time the Lasting Power of Attorney was put in place, but then divorced, this could remove their appointment. Or if there's an LPA covering property and finances and the original attorney becomes bankrupt or subject to a debt relief order, they will not be able to act.

What can a replacement attorney do?

The replacement attorney can start making decisions as soon as the original attorney stops acting. However, the Office of the Public Guardian will need to be informed straightaway so they can update their records.

How the replacement attorney can act depends upon how the original attorney was appointed in the Lasting Power of Attorney. They'll be responsible for making decisions in the same way as the original attorney, either regarding property and finances, or health and care, or both.

If there was only one original attorney appointed, the replacement attorney will simply take their place. Alternatively, if there's more than one original attorney appointed, but one of them is unable to act, the replacement attorney may be able to act alongside the other original attorneys.

How the attorneys make decisions depends what the LPA says. If it says the attorneys have to act jointly, this means they all have to make all decisions together. Or they could be appointed jointly and severally, meaning they can make decisions on their own. Sometimes the donor appoints attorneys to act jointly in some decisions but jointly and severally in others.

The replacement attorney's role will always be subject to the original wishes of the donor.

Given the importance of a Lasting Power of Attorney it’s vital that people understand their options so that they can make informed choices about who they want to help them make decisions and how they should act.

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