What is a Replacement Attorney?
16 March 2017
When Lasting Powers of Attorneys came into force in England & Wales in 2007, replacing the Enduring Power of Attorney, it introduced a number of changes. One of the key changes introduced 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, because they are giving 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.
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, a subsequent divorce with the Attorney could remove their appointment. Or in the case of a Property and Financial Affairs LPA, if the original Attorney becomes bankrupt or subject to a debt relief order, he/she will not be able to act.
The Replacement Attorney can start making decisions as soon as the original Attorney stops acting. However, it’s necessary to inform the Office of the Public Guardian straightaway so that 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 welfare, or both.
If there was only one original Attorney appointed, the Replacement Attorney will simply take their place. Alternatively, if there are a number of original Attorneys appointed but one of them is unable to act then it’s possible that the Replacement Attorney can act alongside the remaining original Attorneys.
How they make decisions is dependent upon how the Lasting Power of Attorney is prepared, for example, whether the Attorneys have to act jointly so that they all have to make a decision together. Or they may be appointed jointly and severally so that they can make decisions on their own. Sometimes the Donor appoints Attorneys to act jointly in respect of some decisions but jointly and severally in respect of other decisions. Therefore 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.