What is a replacement attorney and when would you need it?

If you have set up a Lasting Power of Attorney (LPA) to protect yourself in the event that you ever lose the mental capacity to be able to make everyday decisions for yourself, such as those relating to your wellbeing and finances, you may be wondering what would happen if your appointed attorney ever became unable to act on your behalf, perhaps because they have become too ill or have sadly passed away.In our guide below, we explain exactly what a replacement attorney is and the situations in which you would need to appoint one.

Guides

What is a replacement attorney?

If the attorney you appointed initially in your LPA dies or becomes too ill to act on your behalf, you will need to appoint a replacement attorney to step in and act for you.

To be able to do this, however, you must still have full mental capacity and understand what you are doing and the effects it could have, so it’s crucial that you arrange a replacement attorney straight away before it’s too late and to avoid any complications if it ever needs to be enforced.

What happens if you don’t have a replacement attorney?

If your appointed attorney passes away or becomes too ill to act on behalf of someone else, your LPA will become invalid, meaning that if you unexpectedly lose the mental capacity to carry out everyday actions and make decisions for yourself, your family and loved ones will need to apply to your local Court (or wherever they choose) for a ‘Deputyship Order’.

A Deputyship Order is a legal document which includes information regarding who will make welfare and financial decisions for the person who has lost mental capacity to take care of their own affairs.

If your loved ones have to apply for a Deputyship Order, it could turn out to be a very long, expensive, complicated and stressful process, which is unlikely to be something you’d want them to go through during a time that is already difficult and distressing for them.

If your family does not want to go through the process of applying for a Deputyship Order, the responsibility will automatically be passed over to your Local Authority’s representatives who will then make decisions for you.

For these reasons, it is so important to ensure your LPA is correct, valid and in-line with your personal wishes, in order to get peace of mind that if the worst should ever happen, you are protected and a trusted loved one will help look after you.

In what situations would a replacement attorney be needed?

There are a few differing situations where you may need a replacement attorney to step in. For example:

  • If the original attorney has lost mental capacity.
  • If the attorney who was originally appointed dies, but you - the donor - are still alive.
  • If the initially appointed attorney decides that they do not wish to take on the role of being your attorney in the event that you lose mental capacity.

There are likely to be many other specific situations in which a replacement attorney may need to step in to replace the original. For this reason, it is highly recommended that you use a professional LPA service to help you make your Lasting Power of Attorney and to ensure it is legally-binding in all types of situations.

At Wills Services, our trained and dedicated team can help; tap below to register with us for free and get started on protecting your future:

Set Up Your Lasting Power of Attorney

What is a replacement attorney legally allowed to do?

The ways in which the replacement attorney can legally act on your behalf will all depend on what’s stated in your Lasting Power of Attorney and exactly how the original attorney was appointed to act. The replacement attorney will be expected to act in the same ways as the original attorney was expected to, whether that’s making decisions regarding your day-to-day health and care or your finances and property.

If you only appointed one attorney in the first place, the replacement attorney would be required to take their place, but if you appointed more than one attorney and one of them cannot act on your behalf due to death or illness, what is written in the LPA will determine if they can act alongside the original attorneys and how.

There are three ways in which you can set out how you want your attorney (or attorneys) to act:

  1. Jointly: the attorneys must make each decision unanimously
  2. Jointly and severally: each attorney can make decisions alone, without needing to agree with the other appointed attorneys
  3. Jointly for some decisions but jointly and severally for others: your attorneys must make joint decisions in certain situations as stated in your LPA, but for any other situations not stated in the LPA, they can act and decide individually, without having to agree with the others.

What’s reassuring to know is that your replacement attorney will have to act according to your original wishes.

The replacement attorney can begin acting on your behalf the moment the original attorney becomes unable to act, but the Office of the Public Guardian must be told about this as soon as possible so that their records are all up-to-date.

How to set up a replacement attorney

As you can see, it is so important to get the wording of any legal documents, such as an LPA or will, correct to ensure it is legally-valid if the time should ever come that the document needs to be enforced.

There can be many complications if things are not done correctly. If you do not get it done with a professional, things could get missed out or there could be errors which will prevent your personal wishes from being carried out.

If you want to set up a Lasting Power of Attorney as part of your future planning and to ensure all bases are covered, our professional team at Will.Services are on hand to help should you need it and they are here to ensure your finished documents are correct and legally-binding according to UK law.

To get started now, register with us for free or contact our team for more information and advice.