What is a replacement attorney and what are their powers? Tracy Ashby of Wright Hassall explains what you need to know about replacement attorneys for lasting powers of attorney (LPA).

What is a replacement attorney?

When making a lasting power of attorney (LPA), the donor (the person making the LPA) will need to decide who they wish to appoint to be their attorneys to make decisions on the donor's behalf in the event that the donor loses mental capacity. However, it is also possible to appoint replacement attorneys in the same document.

When an LPA is created, the donor can and should consider what happens if one or all their original attorneys are unable to act. In this case one or more appointed replacement attorneys can step in to act and make decisions if one or all the original attorneys cannot act. Where there are two or more original attorneys, the donor can decide whether the replacement attorney(s) should step in if any one of the original attorneys cannot act, or only if all the original attorneys cannot act. The donor can also nominate a particular replacement attorney to replace a particular original attorney.

Only the donor can appoint replacement attorneys and all original and replacement attorneys must be named in the LPA at the outset and must sign the LPA. The circumstances in which the replacement takes effect may also need to be outlined.

Why might a replacement attorney be needed?

An original attorney will not be able to act if since being appointed they:

• have died
• lose mental capacity
• divorce or dissolve a civil partnership with the donor
• become bankrupt
• disclaim their appointment (do not want to act as an attorney)

Therefore, if one or more of the original attorneys cannot or are unwilling to act, the donor could be left without anyone to take care of matters concerning their health and welfare, and/or property and financial affairs.

If this situation did arise and the donor did not have capacity to make another LPA, an application to the Court of Protection may be needed so that a court appointed deputy can make decisions instead.

What are the powers of a replacement attorney?

Should they need to act, replacement attorneys will usually (unless limited by the donor in the LPA) have the same powers as the original attorney. Replacement attorneys can act with existing original attorneys or instead of the original attorneys.

The LPA drafter needs to consider when, if and how any replacement attorneys are to be appointed. Any attorney, whether original or replacement, must make the decisions in accordance with the donor's instructions in the LPA and in consideration of any preferences specified in the LPA, and in all circumstances in the donor’s best interests.

Replacement attorneys have no authority to act while all of the original attorneys are acting and may only act when the circumstances outlined in the LPA have been met. All acting attorneys and/or replacement attorneys have a number of duties and obligations as contained in the Mental Capacity Act 2005 that they must abide by.

How will a replacement attorney act?

Unless the LPA specifies otherwise, where there is a sole original attorney the appointment of two or more replacement attorneys will be joint, but this may be something the donor wants to change by including specific wording in the LPA.  Where there are two or more original attorneys and one of them is unable to act, the default position is that all replacement attorneys will step in to act together with the remaining original attorney(s).

It is possible to change the way replacement attorneys can act under an LPA and instructions need to be taken to prepare the LPA appropriately so that it meets the donor's wishes. For example, they may decide that they would prefer replacement attorneys to act jointly and severally or only have authority to act if all of the original attorneys are unable to act.

Another option is to state that a specific replacement attorney will step in for a specific original attorney. For example, the original attorneys may be the donor’s children and the replacement attorneys their grandchildren. The donor may wish that a grandchild only steps in to replace their own parent.

It is important to consider how replacement attorneys are appointed to ensure that the LPA document is practical, usable, valid and in accordance with the donor’s wishes.

About the author

Tracy Ashby is Partner and Head of Private Client at Wright Hassall who specialises in advising clients on care fee funding and protecting vulnerable clients.

See also

What you need to know about lasting power of attorney (LPA)

What is a court appointed deputy?

A guide to the Court of Protection

Everything you need to know about testamentary capacity

Find out more

Make, register or end a lasting power of attorney (GOV.UK)

Lasting power of attorney forms (GOV.UK)

Deputies: make decisions for someone who lacks capacity (GOV.UK)

Mental Capacity Act 2005 (Legislation)

Image: Getty Images

Publication date: 22 June 2021

Any opinion expressed in this article is that of the author and the author alone, and does not necessarily represent that of The Gazette.