What to Do if an LPA Attorney Dies Before You

17 August 2017

Sadly there are times when someone makes a Lasting Power of Attorney, but the person appointed to act (fulfil the role) as their Attorney falls seriously ill or dies.

If your Attorney can no longer act you need to check what the terms of your current Lasting Power of Attorney (LPA) are. If you don’t have any Replacement Attorneys, or you want to change the way your Attorneys act, you need to make a new LPA.

What to Do if Your Attorney Cannot Act

Making a Lasting Power of Attorney is a crucial part of future planning. It’s a legal document that allows you to appoint people you trust to make decisions for you, should there ever come a time when you’re unable to make decisions for yourself. The person you appoint is called your Attorney.

Most people will ask someone close to them to act as their Attorney – commonly their spouse, child or close friend. But there are things in life that you can’t anticipate, and it may be that the person you have chosen as your Attorney can no longer act, perhaps because he/she has become unwell or has died.

What happens next depends on what provisions you have made in your Lasting Power of Attorney.

You Have More Than One Attorney

You may have appointed more than one Attorney. This is allowed, and in fact there’s no limit to the number of Attorneys you can have. If you’ve got other Attorneys, you need to check how you’ve appointed them. Have you instructed them to act ‘jointly’, ‘jointly and severally’, or ‘jointly for some decisions, jointly and severally for others’?

If they’ve been appointed:

  • Jointly – they must unanimously agree on decisions
  • Jointly and severally – they can make decisions without the agreement of the other Attorneys
  • Jointly for some decisions, jointly and severally for others – they must act jointly in some important decisions (as dictated by you in your LPA) but not for others

If your Attorneys have been appointed jointly and severally, they can continue to make decisions on your behalf – even if one Attorney becomes permanently unable to act.

But if they’ve been appointed jointly in any way and one Attorney cannot fulfil the role, the other Attorneys will not be able to make any more joint decisions. That’s because you’ve requested that all your Attorneys work together as a single unit. If one person cannot act, the unit will no longer exist in the eyes of the law.

Therefore if you’ve appointed your Attorneys:

  • Jointly – your Lasting Power of Attorney will no longer work
  • Jointly for some decisions, jointly and severally for others – your Attorneys will no longer be able to act in joint decisions

If either of these situations arise, you will need to consider if you have Replacement Attorneys. If you don’t, you’ll need to make a new Lasting Power of Attorney.

Replacement Attorneys

A Lasting Power of Attorney allows you to nominate Replacement Attorneys. Replacement Attorneys are there to step in, should circumstances dictate that the original Attorney can no longer act.

The way your Replacement Attorney acts will again depend on how you’ve appointed your original Attorneys. If you’ve appointed them to act:

  • Jointly and severally – and one of the original Attorneys cannot fulfil the role, the Replacement Attorney can effectively step into the original Attorneys shoes
  • Jointly/jointly for some decisions – all of the original Attorneys must step down and the Replacement Attorney will take over

One Original Attorney

If you only had one Attorney and that person has fallen ill or has pre-deceased you, and you don’t have any Replacement Attorneys, you’ll need to make a new Lasting Power of Attorney.

Deputyship Order

However, it’s important to note that you can only make a new Lasting Power of Attorney if you still have capacity. So if you’ve found yourself in a position where your LPA needs to be changed because your Attorney can no longer act, it’s best to sort it out now – before it’s too late.

If there isn’t a valid Lasting Power of Attorney in place, your loved ones will have no other choice but to apply to the Court for a Deputyship Order. This can be a long and expensive process. If no one able or willing to do this, it will fall to representatives of your Local Authority to make decisions on your behalf.

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