Is a Lasting Power of Attorney Valid after Death?
04 January 2019
A Lasting Power of Attorney only remains valid during the lifetime of the person who made it (called the 'donor'). After the donor dies, the Lasting Power of Attorney will end.
If however the named attorney dies whilst the donor is still alive, then the LPA will remain valid providing there is a replacement attorney who can step in. If there is only one named attorney, with no replacement, then the donor will need to make a new LPA (providing they have capacity to do so).
How Does a Lasting Power of Attorney Work?
A Lasting Power of Attorney (LPA) is a legal document in which a person can appoint another person (called their "attorney") to make decisions on their behalf. There are two types of LPA – one covers the donor's health and welfare and the other covers their property and financial affairs.
One of the most important factors to note is that it's only possible to put an LPA in place when the donor has sufficient mental capacity to fully understand what they are doing. It's not possible to put an LPA in place once the donor has lost this capacity.
The donor can choose to put just one of these types of LPA in place, or they can have both types in place, running alongside one another. The attorney will need to act in line with any instructions that the donor has included in the LPA, and this activity will be overseen by a Government body called the Office of the Public Guardian. See more guidance on what an attorney is and isn't permitted to do.
The primary purpose of an LPA is so that a trusted person has legal authority to step in and immediately take control if the donor becomes unable to make their own decisions. This may be because they have suffered an accident or illness, for example, and as a result they are no longer able to make or express their own decisions.
However, the donor can decide when they would like the LPA to come into effect, and it is possible for this to be effective while the donor still has full capacity. This could be the case if they have mobility issues, for example, and so their attorney goes to the bank and manages their financial affairs on their behalf.
What Happens when the Donor of an LPA Dies?
When the donor dies, any LPAs that are in place in their name will come to an end. The named attorney will need to contact the Office of the Public Guardian (OPG) to notify them of the death.
They will also need to send the following documents to the OPG:
- The original LPA and all certified copies
- A copy of the death certificate
What Happens if the Attorney Dies?
If the named attorney dies while the donor is still alive, then what happens next will depend on what it says in the LPA.
If the donor has appointed multiple attorneys, and these attorneys have the authority to act 'severally' then this means that they can make decisions independently of one another. In these circumstances, the LPA will remain valid and the surviving attorney(s) can continue to make decisions on the donor's behalf.
If the donor has appointed multiple attorneys but they only have the authority to act 'jointly' then this means that they are unable to make decisions independently of one another. In these circumstances, the LPA will no longer be effective, as the surviving attorney(s) cannot make decisions independently of the deceased attorney.
It is possible to appoint attorneys to act jointly on some decisions and severally on others. If this is the case, then the surviving attorney(s) will now only be able to make decisions where they are entitled to act severally.
If the donor has nominated a replacement attorney, then this individual will now be able to step in to act. If there was only one attorney originally then they will be able to take on this role along. If there are other attorneys which have been appointed to act jointly, the replacement attorney will be able to take the place of the deceased attorney, so joint decisions can still be made.
If the LPA only named one attorney, with no replacement attorneys, then it will become ineffective if that attorney dies. For this reason, it's important to seek professional advice when drafting your LPA, to ensure that you've considered different eventualities that may arise.