What Is a Lasting Power of Attorney?
A Lasting Power of Attorney (LPA) is a legal document that allows you to appoint one or more individuals to make decisions on your behalf if you are unable to do so. These decisions can relate to your Property and Financial Affairs or your Health and Welfare.
Importantly, a Property and Financial Affairs LPA can be used even while you still have the capacity to make decisions, provided you give your consent. On the other hand, the Health and Welfare LPA only comes into effect when you are deemed to lack mental capacity. For more details on the importance of a Health and Welfare LPA, click here.
What Is a Replacement Attorney?
The individuals you appoint to make decisions on your behalf are known as Attorneys. You can appoint up to four Attorneys and decide how they should work together when making decisions.
However, it’s important to consider what would happen if one or more of your Attorneys are no longer able to act. This is where Replacement Attorneys come in. They are appointed to step in if any of the original Attorneys become unable to fulfil their role.
You can also decide under what circumstances the replacement Attorney should step in. They can either replace a specific Attorney or take over only if all the original Attorneys can no longer act.
When Are Replacement Attorneys Needed?
There are several reasons why an original Attorney may become unable to act, including death, mental incapacity, bankruptcy, or simply choosing to step down from the role.
If any of these situations arise and no replacement Attorney has been appointed, you could be left without an Attorney to make decisions on your behalf. In such cases, you would need to create a new Lasting Power of Attorney. However, if you have lost mental capacity, you wouldn’t be able to make a new LPA. This would require an application to the Court of Protection for a Deputy to be appointed to manage your affairs.
How Do Replacement Attorneys Operate?
A replacement Attorney cannot act while the original Attorneys are still able to unless you have specifically stated that they can take over for a particular Attorney. For instance, you might specify that a child of one of the original Attorneys can replace them if they become unable to act.
If a replacement Attorney does step in, they generally act alongside the remaining original Attorneys or other replacement Attorneys, depending on the instructions set out in the LPA. In many cases, this means that all Attorneys capable of acting must make decisions jointly. However, you have the option to specify that the Attorneys can act jointly and severally, meaning they can make decisions either together or individually.
Whether an Attorney is original or a replacement, they are legally required to act in accordance with the Mental Capacity Act 2005 and always act in your best interests.
Having a Lasting Power of Attorney in place, with carefully chosen replacement Attorneys, ensures your wishes are followed even if circumstances change. It provides peace of mind that someone you trust will manage your affairs should your original Attorneys be unable to do so.
