A Lasting Power of Attorney (LPA) is a legal arrangement that allows you to appoint someone to make decisions for you if you become unable to do so. It allows for your wishes to be followed and for someone you trust to take charge of your affairs if needed. There are two types of LPAs in the UK: one for Property and Financial Affairs and another for Health and Welfare. Both types serve a different purpose but is equally important in safeguarding your interests.  We recommend to our clients that they put in place both types when creating their LPAs.

How Do Attorneys Feature in an LPA?

When creating an LPA, you choose one or more attorneys to act on your behalf. Attorneys are typically family members or close friends who know you well and understand your needs and preferences. Their role is to act in your best interests and make decisions as you would, guided by what they think you would want and the instructions or preferences set out in the LPA.

Your attorneys can act either jointly (together) or jointly and severally (independently), depending on the terms you specify.  They can even act jointly for some decision and jointly and severally for others - an approach we often recommend to our clients. These arrangements determine how your attorneys work together when making decision.  If carefully drafted, the terms of your LPA should help ensure the big decisions are shared, while the small ones are made quickly without fuss. However, what happens if one of your chosen attorneys cannot fulfil their duties? This is where a replacement attorney comes in.

What is a Replacement Attorney?

A replacement attorney is a person you nominate to step in if your original attorney is unable to act. This could happen for several reasons:

• Your attorney loses mental capacity themselves.
• They decide they no longer wish to act as your attorney.
• They pass away.
• In the case of Property and Financial Affairs LPAs, they become bankrupt.

If an attorney cannot act and no replacement is in place, your LPA could fail. This can happen even if you have more than one attorney in place from the outset. This would leave you without the protection the LPA was designed to provide. By naming a replacement attorney, you reduce this risk and ensure continuity in the management of your affairs.

Replacement attorneys act as understudies, ready to take over when necessary. This is particularly beneficial if your original attorney is your partner or spouse who may be of a similar age to you. They are just as likely as you to lose mental capacity or encounter other issues preventing them from acting. For couples who have created a mirror Lasting Power of Attorney, naming a replacement attorney ensures the LPA remains effective for as long as possible.

That said, appointing a replacement attorney isn’t obligatory. If you don’t have someone suitable for the role, your LPA can still function with your original attorney(s). However, including a replacement attorney is an excellent way to future-proof your arrangements.

How Do Replacement Attorneys Act?

Replacement attorneys generally have the same powers and responsibilities as the original attorneys unless stated otherwise in the LPA. They are bound by the same rules and must act in your best interests, following any instructions or preferences you’ve set out.

The circumstances under which replacement attorneys step in can depend on complex rules related to how you’ve instructed your attorneys to act together. For instance:

• If your original attorneys act jointly, and one becomes unable to act then the replacement attorneys will  replace all of the original attorneys (not just the one unable to act).
• If they act jointly and severally, a replacement attorney may only replace the specific attorney unable to act.

These details underline the importance of careful planning when drafting your LPA to ensure clarity and avoid misunderstandings.

If You Have Several Attorneys or Replacement Attorneys, Involve a Solicitor

If you decide to appoint multiple attorneys or replacement attorneys, it’s wise to seek legal advice. The rules around when and how replacements step in can be complicated as noted above.  Not only will you need to indicate how you want the original attorneys to work together, but also understand how that decision will impact their succession if they stop being able to be your attorneys.

These nuances can create confusion and unintended consequences if not properly addressed when drafting the LPA. A solicitor can help clarify these details, ensuring your instructions are clear and legally binding. They can also guide you on how best to structure your LPA to reflect your wishes and circumstances.

Final thoughts

A replacement attorney is an invaluable addition to your LPA. They provide a safety net, ensuring your LPA remains effective even if your primary attorney cannot act. This is especially important if you’ve appointed a partner or spouse as your attorney, as they may face the same risks as you.

While including a replacement attorney is not mandatory, it’s a practical step to consider when creating your LPA. If you’re unsure about how to appoint attorneys or replacements, or if your situation is complex, feel free to contact us for assistance. Our expertise can help you navigate the process and make informed decisions, giving you confidence that your affairs are in safe hands.