What Is a Replacement Attorney?

sarah ryan
Sarah RyanAccount Manager @ Lawhive & Non-Practising Solicitor
Updated on 26th January 2024

When someone is granted Lasting Power of Attorney (LPA), they take on significant responsibility. But what if they can no longer continue in their role?

Whether you have LPA and need to step down, or you're a donor looking to appoint a new LPA, this article has the answers you need.

replacement-attorney-lpa

What is a replacement attorney?

A replacement attorney steps in when the person granted Lasting Power of Attorney (LPA) can no longer fulfill their role.

This concept was introduced when the Enduring Power of Attorney (EPA) was replaced by the LPA in 2007.

LPAs allow someone to appoint a trusted person to make decisions for them when they are unable to due to illness or incapacity. These decisions can involve property, finances, health, and care. Up to four people can be appointed to act in someone's interest, and LPAs can only be set up by someone over 18 with mental capacity.

Can you appoint replacement attorneys?

Yes, someone with power of attorney is appointed by a donor, who is the person the attorney makes decisions for. A replacement attorney is named as a backup in case the original LPA can no longer or is unwilling to act.

Usually, the donor appoints a family member as a replacement attorney. If a family member isn't an option, a friend or neighbor could be chosen. Professionals like solicitors can also serve as replacement attorneys, but they will charge for their services.

It's important to carefully consider who will step in as a replacement attorney because they can make significant decisions affecting your current and future well-being.

Why might a replacement attorney be needed?

There are various situations where you may need a replacement attorney to step in for the original one. These include:

- If the attorney passes away and you (the donor) are still alive
- If the attorney lacks mental capacity
- If the attorney no longer wants or cannot fulfill the role due to illness or other vulnerabilities
- If there's a divorce or relationship breakdown between the attorney and the donor
- If the attorney declares bankruptcy

An attorney is immediately disqualified from their position if they were the partner of the donor and divorce proceedings are started. Another instance of automatic disqualification occurs when the attorney goes bankrupt, as they can no longer be trusted to manage someone else's finances.

What can a replacement attorney do?

What a replacement attorney can do depends on what powers the original attorney was given.

For example, if the original attorney was only in charge of finances, the replacement can't make decisions about health or care. But if the original attorney managed all aspects of the donor's life, the replacement will do the same.

How will a replacement attorney act?

If there was only one attorney appointed initially, the replacement will take over all their duties. However, if there were multiple attorneys and one can no longer act, the replacement can make decisions alongside the remaining original attorney, taking on the responsibilities of the departed attorney.

The Lasting Power of Attorney (LPA) may specify that attorneys must act jointly, meaning they must make decisions together, or they may allow attorneys to act jointly and severally, giving them the option to make decisions together or independently.

The replacement attorney can start making decisions once the original attorney steps aside, but the Office of the Public Guardian needs to be notified first to update their records.

What should you do if you start acting as a replacement attorney?

First and foremost, the replacement attorney should follow the original wishes of the donor.

Before you start your duties, inform the Office of the Public Guardian. They'll update their records of attorneys.

If you have any doubts or questions, reach out to the Office of the Public Guardian for advice and guidance. They help people in England and Wales stay in control of health and financial decisions and assist others who cannot decide for themselves.

How many replacement attorneys can you appoint?

There's no limit on how many replacement attorneys a donor can appoint. However, all original and replacement attorneys must be named in the LPA document, and the donor must appoint them. Additionally, all attorneys, both original and replacements, must sign the LPA document.

If you didn't name a replacement attorney in your original LPA, you would need to create a new LPA. If you've lost capacity by this time, a deputy would need to apply to the Court of Protection. A deputy acts similarly to an attorney, making decisions in someone's best interest.

Need help with Lasting Power of Attorney?

Our wills, trust, and probate solicitors at Lawhive can assist you in understanding whether and when you might need a Lasting Power of Attorney.

Considering the importance of an attorney's role, it's important to carefully consider the role you want your attorney(s) to play. We can help you make this decision and support you in creating an LPA, including selecting replacements as a precaution.

Contact us today for a free case assessment to learn more.

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