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
