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LPA Kent

Tel : 07771 527810

Lasting Power of Attorney

Starting from £195.00

  • Paul has been one of our most trusted and customer focused business advisers and document specialists. He is a true professional.

    Tudor Price (Deputy CEO, Kent Invicta Chamber of Commerce)
  • Paul has been one of our most trusted and customer focused business advisers and document specialists. He is a true professional.

    Tudor Price (Deputy CEO, Kent Invicta Chamber of Commerce)
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Replacement Attorneys

 

Replacement attorneys are people the donor chooses to step in if one of their original attorneys can no longer act.

Replacement attorneys need to sign the LPA before it can be registered.

The donor does not have to appoint replacement attorneys but having them helps to protect the LPA. It means the LPA should still work if an original attorney can no longer act.

Without replacements:

     ·        if there’s only one attorney and that attorney can no longer act, the LPA will stop working

     ·        if the donor appointed their attorneys to act jointly and one attorney can no longer act, the LPA will stop working, unless the donor has stated otherwise in their                  instructions

     ·        if the donor appointed their attorneys to act jointly for some decisions, and one attorney can no longer act, the joint decisions can no longer be made, unless                          the  donor has stated otherwise in their instructions

If the LPA cannot be used and the donor no longer has mental capacity, someone will have to apply to the Court of Protection to get the power to act on the donor’s behalf – this can be expensive and usually takes a long time.

Who can be a replacement attorney

A replacement attorney must meet the same requirements as an original attorney. This includes having mental capacity and being 18 or over when the donor signs the LPA.

When replacement attorneys step in

Replacement attorneys step in if one of the attorneys can no longer act. This may be because the attorney:

     ·        dies

     ·        loses mental capacity

     ·        decides they no longer want to act as an attorney (known as 'disclaiming their appointment')

     ·        was the donor’s wife, husband or civil partner, but the relationship has legally ended, and the donor has not stated in their instructions that their ex-partner can                  continue as an attorney in these circumstances

     ·        becomes bankrupt or subject to a debt relief order and was an attorney for a property and financial affairs LPA

Replacing attorneys who act jointly and severally

When there are replacement attorneys, if an original attorney dies or can no longer act:

     ·        all the replacement attorneys will step in together, unless the donor has stated otherwise in their instructions

     ·        the replacement attorneys and any remaining original attorneys can then make decisions ‘jointly and severally’

Change when and how replacement attorneys step in

When the original attorneys are appointed to act jointly and severally, the donor can add instructions to specify the order in which their replacement can step in. 

Examples:

"If one of my attorneys (my mother and father) can no longer act, I would like that attorney to be replaced by my sister who is one of my replacement attorneys. If at a later stage my other parent can no longer act, I would like my other replacement attorney, my brother, to step in to replace that person as my attorney."

"If my attorney Dave Smith becomes unable to act under this LPA, I want replacement attorney Jane Hall to step in and act in his place."

Replacing attorneys who act jointly 

Replacement attorneys are an important backup when attorneys are appointed to act jointly.

When there are replacement attorneys, if an original attorney dies or can no longer act:

     ·        all the replacement attorneys will replace all the original attorneys

     ·        the remaining original attorneys will not be able to make any decisions on the donor’s behalf anymore

Replacing attorneys who act jointly for some decisions

Replacement attorneys are an important backup when attorneys are appointed to act jointly for some decisions, and jointly and severally for others.

When there are replacement attorneys, if an attorney dies or can no longer act:

     ·        all the replacement attorneys step in and take over making the joint decisions

     ·        the remaining original attorneys will not be able to make the joint decisions anymore

     ·        the replacement and remaining original attorneys can make all other decisions individually


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What is an Attorney?

When they make an LPA, the donor chooses one or more trusted people to make decisions (‘act’) on their behalf. These people are called attorneys. 
The donor must choose at least one attorney. They can have as many attorneys as they want, but if there are too many, it may be difficult for them to all work together.

When making decisions for the donor, the attorneys must always:
• act in the donor’s best interests
• follow any instructions the donor put in their LPA
• consider any preferences the donor put in their LPA

When an LPA can be used explains when attorneys can start acting on the donor’s behalf.

The 2 types of LPA explains the types of decisions the attorneys will be able to make on the donor’s behalf.

Attorneys need to sign the LPA before it can be registered.

Who can be an attorney?

The donor can ask anyone aged 18 or over who has mental capacity to be their attorney.

A person who is on the Disclosure and Barring Service barred list cannot act as an attorney. They're breaking the law if they do.

An undischarged bankrupt or a person subject to a debt relief order cannot be an attorney for a property and financial affairs LPA.

Choosing attorneys
The donor should choose people they trust and know well. Many donors choose family members or close friends to be their attorneys.

Attorneys do not need to be solicitors or have a legal background.

The donor must decide:
• who they want to appoint as their attorney or attorneys
• whether they want any replacement attorneys - people who step in if one of the original attorneys can no longer act
• how they want their attorneys to work together

It’s important that:
• the donor knows their attorneys well
• the attorneys understand the donor’s beliefs and preferences well enough to make decisions for the donor
• the donor trusts their attorneys to act in their best interests
• the attorneys have the skills to act under the LPA. For example, do they manage their own affairs well? Are they good with money?

The donor should fully discuss the LPA with their potential attorneys before appointing them. Being an attorney can be a lot of work. Ask the potential attorneys to visit the ‘Acting as an attorney’ pages on GOV.UK to find out more about what’s involved.

Each attorney must:
• understand the role and responsibilities of an attorney
• agree to be the donor’s attorney
• sign the LPA
• follow the Mental Capacity Act Code of Practice

Appointing the donor’s wife, husband or civil partner as an attorney
The donor can appoint their wife, husband or civil partner as an attorney. This person will usually have to stop being an attorney if the marriage or civil partnership is later ended through divorce, dissolution or annulment. If they’re the only attorney and there are no replacements, this means the LPA can no longer be used. See ‘When attorneys can no longer act below.

In their instructions the donor can state that their wife, husband or civil partner can continue to be their attorney after a divorce, dissolution or annulment.

Professional attorneys
Some donors ask a professional, such as a solicitor or accountant, to be their attorney or one of their attorneys. Professional attorneys usually charge fees.
If the donor appoints a professional attorney, they must name an individual in the LPA. They cannot just give a job title or the name of a firm.

If an attorney becomes bankrupt or subject to a debt relief order
If an attorney on a property and financial affairs LPA becomes bankrupt or subject to a debt relief order after the LPA is registered, they’ll no longer be able to act. If they’re the only attorney and there are no replacements, this means the LPA can no longer be used. See ‘When attorneys can no longer act’ below.
People who are bankrupt or subject to a debt relief order can still be attorneys on a health and welfare LPA.

If an attorney is placed on the Disclosure and Barring Service barred list
If an attorney on any type of LPA is placed on the Disclosure and Barring Service barred list, they’ll no longer be able to act an attorney. They're breaking the law if they do.
If they’re the only attorney and there are no replacements, this means the LPA can no longer be used. See ‘When attorneys can no longer act’ below.

Trust corporations
A trust corporation can be the attorney or one of the attorneys on a property and financial affairs LPA. A trust corporation manages funds, such as savings, pensions, investments. It’s usually run by a commercial bank or firm of solicitors.

If the donor’s finances are complex or they do not have anyone they want to appoint as an attorney, they might choose a trust corporation. If they’re considering this, the donor should get legal or financial advice.

If the donor appoints a trust corporation as their attorney, make sure you use the exact name it operates under in the LPA.

The donor can only appoint one trust corporation in their LPA.

When attorneys can no longer act
An attorney can no longer act if they:
• lose mental capacity
• decide they no longer want to act as an attorney (known as 'disclaiming their appointment')
• were the donor’s wife, husband or civil partner, but the relationship has legally ended (unless the donor states otherwise in their instructions)
• become bankrupt or subject to a debt relief order and were an attorney for a property and financial affairs LPA
• are placed on the Disclosure and Barring Service barred list

When an attorney dies or can no longer act, the LPA will be cancelled if:
• the donor only appointed one attorney and no replacement attorneys
• the donor appointed the attorneys jointly and did not appoint any replacements, unless the donor specified otherwise in their instructions

To protect their LPA, the donor should consider appointing replacement attorneys.

If the donor cancels their LPA, the attorneys can no longer act on the donor’s behalf.

Remove an attorney after the LPA has been registered
As long as the donor still has mental capacity, they can contact OPG and ask for a particular attorney to be removed from their LPA.

Read More ›

 

Certificate Providers

The certificate provider is an impartial person who helps protect the donor’s interests by checking that the donor understands the LPA and is making it of their own free will.

The certificate provider's role

The certificate provider must discuss the LPA with the donor. It’s a good idea for this discussion to happen in private, without the attorneys or anyone else present.

The certificate provider signs the LPA to certify that they have discussed the LPA with the donor and that:

       ·        the donor understands the significance of their LPA

·        no one is putting the donor under pressure to make the LPA

·        there has been no fraud involved in making the LPA

·        there is no other reason for concern

·        The donor must sign the LPA before the certificate provider. The certificate provider can witness the donor’s signature.

 Who can be a certificate provider

The certificate provider must be 18 years old or over and have mental capacity.

They can be either:

·        someone who has known the donor personally for at least 2 years, such as a friend or neighbour (but not a relative)

·        someone with relevant professional skills

Someone who has known the donor well for at least 2 years

This could be one of the donor’s friends or neighbours, someone they know at a social or sports club, a work colleague, or similar.

The certificate provider must be more than an acquaintance. They must know the donor well enough to have an honest conversation with them about the LPA and the power the donor is giving to their attorneys.

'People to notify' can be certificate providers.

Someone with relevant professional skills

This could be one of the following:

·        a registered healthcare professional, such as the donor’s GP

·        a solicitor, barrister or business advisor

·        a registered social worker

·        a professional  LPA advisor

Other professionals may have skills that allow them to judge whether the donor can make an LPA. Contact the Office of the Public Guardian if you’re not sure about the donor’s choice of certificate provider. 

Who cannot be the certificate provider?

The certificate provider cannot be:

·        any attorney or replacement attorney for this or any other LPA or enduring power of attorney that the donor has made

·        a member of the donor’s family or of any of the attorneys' families – including husbands, wives, civil partners, in-laws and step-relations

·        an unmarried partner, boyfriend or girlfriend of the donor or any of the attorneys

·        the donor’s business partner or any attorney’s business partner

·        the donor’s employee or any attorney’s employee

·        anyone running or working for a care home where the donor lives, or a member of their family

·        anyone running or working for a trust corporation appointed as an attorney in this LPA

·        the donor

·        any other person the Court of Protection may consider is not sufficiently independent

Read More ›

LPA KENT is a trading style of Nextlevel Mentoring Ltd.

Company No: 07515347

01233 840688

Copyright © 2011-2019

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