Under an LPA, the donor can name specific replacement attorneys that will step in to act in certain situations.
When the replacement attorneys step in will depend on how the original attorneys are appointed.
Replacing a sole attorney
Replacements attorneys will start acting as soon as the original attorney is no longer able to act (i.e. death, mental incapacity or disclaims).
Unless the LPA says otherwise, the replacement attorneys will act jointly.
Replacing attorneys acting jointly
Replacement attorneys will step in to act as soon as one original attorney is no longer able to act. The remaining original attorneys will no longer be able to act.
If multiple replacement attorneys are appointed, they will also act jointly, unless the LPA states otherwise.
Replacing attorneys acting jointly and severally
Replacement attorneys will step in as soon as one original attorney is no longer able to act.
The replacement attorneys will act jointly and severally with any remaining original attorneys.
This is subject to the LPA stating otherwise, for example the LPA may state that:
- Replacement attorneys are not to act until all original attorneys are unable
- A certain order is to apply to how the replacement attorneys replace the original attorneys. For example, an LPA appointing the donor’s son and daughter as attorneys and their son-in-law and daughter-in-law as replacement attorneys could state that the daughter-in-law is to replace the son when he can no longer act and the son-in-law replaces the daughter.
Replacing attorneys acting jointly for some, jointly and severally for others
In regards to the decisions being made jointly, the replacement attorneys will step in as one original attorney is no longer able to act. The remaining original attorneys will no longer be able to make these joint decisions. These would be made solely by the replacement attorneys who would also act jointly.
In regards to the decision being made jointly and severally, replacement attorneys will step in as soon as one original attorney is no longer able to act and will act alongside the original attorneys for these jointly and severally decisions. This is subject to the LPA stating otherwise as stated above.
What can’t replacement attorneys do?
Replacement attorneys cannot temporarily replace an attorney e.g. if an attorney is away on holiday. If the replacement attorneys step in, the change is permanent.
A replacement attorney cannot replace another replacement attorney. It is therefore not possible to have more than two levels of appointment on one LPA. The case of Office of the Public Guardian v Boff and another does suggest an alternative where a donor could make two LPAs. The first LPA would name the first two levels of appointment. The second LPA would name the next levels of appointment and include a restriction that it is conditional upon the first LPA no longer being operable. This of course would be a costly method around the restriction.
Replacement attorney arrangements can end up fairly complex, feel free to email the team if you have questions or if a client has a complex arrangement that you are uncertain about.
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8 comments
Michelle Taylor
3 February 2020 at 12:39 pm
I have a dilemma. I registered my grandfathers LPA with my mother appointed as attorney and myself as the replacement attorney. At the time I didn’t add my sister as a replacement attorney as I didn’t see the option for this on the form.
My mother has passed away and now I have notified OPG of her death, I am the attorney. The problem here is my sister doesn’t know I am the attorney and I don’t know how to tell her that I didn’t add her in the first place. I don’t want to upset her. What can I do?
WillPack
4 February 2020 at 4:36 pm
Unfortunately, we are only insured to provide advice to our partners. If you require any advice we would recommend contacting the Society of Will Writers on [email protected] or 01522 687888 who will be able to put you in contact with a will writer local to you.
David Levenson
9 September 2020 at 12:53 pm
Is it possible to vary the LPA by appointing the Replacement Attorneys jointly, but then varying their status at the point they become attorneys?
What would you say are the pros and cons of Replacement Attorneys acting jointly vs jointly severally?
I have two children, one of whom lives abroad. My preference is that they if they become the attorneys for the LP1F they act jointly, but that might be inconvenient for them in some instances.
WillPack
9 September 2020 at 12:55 pm
Unfortunately, we are only insured to provide advice to our partners. If you require any advice we would recommend contacting the Society of Will Writers on [email protected] or 01522 687888 who will be able to put you in contact with a will writer local to you.
Andrea Marsden
2 October 2020 at 9:22 am
My brother and I are replacement attorneys for opur parents on each others estates. We are now at a point where we need to step in as attorneys.
What do we need to do to action this
Many thanks
WillPack
2 October 2020 at 9:32 am
Unfortunately, we are only insured to provide advice to our partners. If you require any advice we would recommend contacting the Society of Will Writers on [email protected] or 01522 687888 who will be able to put you in contact with a will writer local to you.
Barney Jo
3 August 2021 at 8:53 pm
What is the point of you having a web page and a comments section if you decline to answer questions? You can make clear ‘this is not legal advice’ etc., and then provide a simple, liability free perspective ‘in principle.’
WillPack
3 August 2021 at 9:00 pm
Unfortunately, our insurance does not allow us to provide any form of advice to those who are not partnered with us. However, if you contact the Society of Will Writers ([email protected] or 01522 687888) they can put you in contact with a will writer who will be more than happy to assist with any queries you may have.
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