Replacement attorneys - do you need to appoint them in your LPA?

There is no obligation for the people you nominate as attorneys in your lasting power of attorney to accept the position or carry on in it indefinitely. Being an attorney is a role that carries a lot of responsibility and requires time to carry out.

Replacement attorneys are people you nominate to step in permanently if your original attorneys cannot or feel that they can no longer act.

To some extent, signing the document when it is registered confirms that, at least at the time of registration, that a nominated attorney is happy to take on the role.

However, when the time comes for the power to be transferred, which could be many years later, circumstances might be different.

One of the nominated people may feel that his or her life does not allow him or her to act as you need, or he or she may no longer qualify (for example, if he or she has lost mental capacity himself or herself).

This might happen if a helper:

  • dies

  • loses mental capacity

  • decides he or she no longer wants to act on your behalf (known as "disclaiming their appointment")

  • was your wife, husband or civil partner but your relationship has legally ended (unless you’ve added an instruction for them to continue)

We recommend appointing replacements, because if there are no original attorneys acting, your LPA becomes void and no-one can help you.

Who can be a replacement helper?

A replacement must meet the same requirements as any other attorney. This includes having mental capacity and being 18 or over on the date you sign your document.

A replacement can act only if the original they’re replacing is permanently unable to make decisions. A replacement cannot:

  • temporarily stand in for an attorney who is still able to act (for example, while he or she is on holiday)

  • replace a replacement

Depending on how you elect your attorneys to make decisions, either all or some original attorneys must have stepped down or be no longer able to act.

All replacements then step in. So there may be either just the replacements, or all the replacements, plus some of the originals. Of course, some of the nominated replacements may have chosen not to take up the position.

There is a misconception that replacements are like substitutes in a football team – that if a player is injured, a substitute can be chosen to take his or her place.

However, a better analogy is a football club that fields two teams – an A-side who are preferred, and an entirely separate B-side who play if the A-side cannot.

In choosing who to nominate as an attorney and who to nominate as a replacement, you can be much more flexible about who makes decisions on your behalf.

Examples

Perhaps you trust your husband to make all decisions by himself because he knows you best, but only if he dies or becomes mentally incapacitated, then perhaps you want both your adult children to jointly make decisions. This can be done by nominating your husband as sole attorney, and both children as replacements.

Perhaps you want your husband or your daughter to make decisions, but either of them should no longer be able, you want your son to step in. In which case, you appoint your husband and daughter to act together and individually, and your son as a replacement.

Perhaps you want your husband and your son (who get along well) to make decision together, but if either of them should no longer be able, you want your daughter (who doesn’t get on with her brother so well) to step in completely. In which case, you appoint your husband and your son to act together jointly, and your daughter as a replacement.

Making an LPA

Net Lawman has partnered with Unforgettable.org, a specialist dementia products and services retailer to produce a lasting power of attorney service that is both dementia-specific and free to use.

You can create either LPA online free by answering a questionnaire in plain English. If you want peace of mind that your answers will have the effect you intend, then a professional will writer can review the documents for a small fee.

Please note that the information provided on this page:

  • Does not provide a complete or authoritative statement of the law;
  • Does not constitute legal advice by Net Lawman;
  • Does not create a contractual relationship;
  • Does not form part of any other advice, whether paid or free.
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