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A Lasting Power of Attorney (LPA) is a legal tool allowing an individual (the donor) to appoint one or more persons (attorneys) to make decisions on their behalf.
There are two types:
These appointments are governed by the Mental Capacity Act 2005, ensuring attorneys act in the donor’s best interests.
For example, if there is an LPA in place for the health and welfare of an individual, and that person then suffers from dementia to the point of mental incapacity, the attorneys can make healthcare decisions on their behalf.
The two are mutually exclusive, however, so if no LPA exists for financial matters, the health and welfare attorneys cannot make financial decisions for the donor, and vice versa.
The effect of an attorney’s death on an LPA depends on how the attorney(s) were appointed.
If the only attorney named dies, the LPA becomes ineffective – it can no longer be carried out and another must be written up (if the donor is still mentally able to sign off on this).
If the donor still requires someone to make decisions on their behalf but cannot appoint a new attorney, an application to the Court of Protection for the appointment of a deputy might be necessary.
In certain cases, the death of one attorney does not automatically invalidate the LPA.
Under Section 13(6)(b) and (7) of the Mental Capacity Act 2005, if multiple attorneys are appointed ‘jointly’, the death of one makes the LPA ineffective.
However, if appointed ‘jointly and severally’, the remaining attorneys can continue their duties.
In simple terms, if attorneys are named to work ‘jointly’, it means they must act together. So, if one dies, the LPA cannot function anymore.
On the other hand, if they are appointed ‘jointly and severally’, they can either work together OR independently.
In this setup, if one attorney passes away, the others can continue to make decisions without disruption.
Alternate attorneys are effectively a safeguard within an LPA, stepping in if an original attorney dies.
Section 10(8)(b) of the Mental Capacity Act 2005 allows for the appointment of substitutes, ensuring continuity in decision-making.
You should consider naming alternate attorneys when creating an LPA.
These can even be the soliciting firm that helps you write your LPA and who can step in if all the other attorneys have passed away or refuse to take on the responsibility.
It’s a last resort, but it can give you peace of mind that you will be looked after by someone who has your best interests at heart.
Upon an attorney’s death, as well as any of your other legal obligations, two steps are necessary:
The Powers of Attorney Act 2023 provides guidance on these procedural aspects but it is always best to speak to an experienced solicitor in these instances.
If other attorneys are acting ‘jointly and severally’ the LPA does not need action, as the others can continue to act as the attorneys but if the deceased was the only named attorney or the attorneys were acting ‘jointly’ the LPA is no longer valid.
If the donor still has the ability and mental capacity but there are no living (or willing) attorneys available, they may need to set up a new LPA.
This is the same process as when originally setting up the initial LPA and should, of course, be handled by a qualified solicitor.
We recommend that our clients never leave things like this to chance.
It’s always best to include multiple attorneys into your LPA and plan for unfortunate and unforeseen eventualities rather than scramble to fix them if and when they occur.
We suggest that you:
It’s a horrible scenario to be in – we understand that – but if you are in the unenviable position of having to work around a deceased attorney within an LPA situation, we can help.
Please get in touch and discuss this issue with us. We are happy to look over your preexisting LPAs and help you write a new one where necessary.
Head of Wills, Probate and Older Client Services
I joined Mander Hadley’s Wills, Probate and Older Client Services Team in 2018.I specialise in the preparation of Wills, Probate and estate administration, trusts and trust administration and Lasting Powers of Attorney. I also have experience of care fee planning and appeals of Continuing Health Care decisions.
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