What happens when a joint Power of Attorney dies?

If you make a Lasting Power of Attorney (LPA), then your chosen attorneys will be able to deal with your affairs in the future, should you ever be unable to manage them yourself. You can appoint one or more attorneys and choose how they represent you. We take a look at what happens when a joint Power of Attorney dies.

At Lockings Solicitors, we help clients put LPAs in place to protect their interests and to authorise trusted representatives to manage their affairs. We also advise families and attorneys, ensuring they understand their role and providing any help and guidance they may need.

If someone is left without an attorney, for example, because of a death, we can discuss the options and assist in putting a new representative in place.

Why make a Lasting Power of Attorney?

Making an LPA is the best way of ensuring you will have help should you ever need this. You can choose a trusted relative or friend to manage your affairs for you in the event that you become unable to do this for yourself.

You can make two different types of Lasting Power of Attorney:

• A property and financial affairs LPA; and
• A health and welfare LPA

The document can be registered once it has been signed and then it will be ready to use. A property and financial affairs LPA can be used while you still have mental capacity if you wish. A health and welfare LPA can only be used if you lose the ability to make your own decisions.

How many attorneys can I appoint?

You can appoint as many attorneys as you want to represent you. You do not have to have the same attorneys for each type of LPA.

If you appoint more than one attorney, you will need to decide what authorisation you are going to give them. This could be either:

• Acting jointly and severally, which means any of them can make a decision on their own; or
• Acting jointly, which means that all attorneys must authorise each decision together

It is harder for attorneys to act jointly, as it can slow matters down. You can choose to allow them to act jointly and severally for more minor actions but require a joint decision for major matters such as the sale of your home.

Most people choose to have one or two attorneys for each type of LPA.

You also have the option of appointing backup or replacement attorneys. This is someone who will take on the role if your initial choice is unwilling or unable to act when the time comes or if they become unable to carry on at any point. This could be because of their death, or they may lose mental capacity themselves or simply find the role too onerous to continue with.

How does a replacement attorney take over?

If a replacement attorney has been named, then they can start to act as soon as the original attorney has finished in the role. The Office of the Public Guardian (OPG) must be notified of any changes, including:

• The death of an attorney
• If a replacement attorney steps in
• If an existing attorney stops acting

When the OPG is notified, the original LPA document must be sent to them along with any certified copies that exist. If the attorney died outside of the UK, then the OPG will also need an official copy of the death certificate.

The OPG will update the LPA and return it to the individual who notified them, usually an attorney. If you are a new attorney, you should notify any other attorneys that you are acting. You must also check the terms of your authority in the LPA so that you understand what you can do and whether you need to make decisions jointly with another attorney.

What happens if no replacement attorney has been appointed?

If an attorney dies and no replacement attorney has been appointed, any remaining attorneys can continue to act if they are authorised to act jointly and severally.

If the LPA only authorised the attorneys to act jointly, so that they must all approve each decision, the LPA will end if there is no replacement named.

If the person who made the LPA, known as the donor, still has mental capacity, they can make a new LPA. If they have lost mental capacity, then their family will need to ask the court for a deputyship order appointing someone as a deputy if they want to be able to authorise decisions. The court will give the deputy the authorisation to take specified actions on behalf of the patient.

What happens when a joint Power of Attorney dies and there is no replacement?

If the attorney’s death means that the LPA cannot continue because there is no replacement and the remaining attorney or attorneys are not authorised to act jointly and severally, then we can help you with a deputyship application if the donor is no longer able to make a new LPA.

A deputyship application is a request to the Court of Protection to appoint someone to manage the patient’s affairs for them. It is a more complicated process than putting an LPA in place, as well as being more expensive.

As well as filling in the application form, you will also need to provide a range of further information, depending on the decisions you want to make for the individual.

If you want to help with their property and financial affairs, the court will need information relating to the patient’s assets, income, debts and outgoings, as well as the deputy’s financial situation.

For a health and welfare deputyship order, you will need to supply details of what decisions you want to be authorised to make as well as a note of the professionals currently caring for the patient.

The application will need to be accompanied by a capacity assessment carried out by a professional authorised to assess mental capacity.

We can prepare an application on your behalf, if necessary, and ensure that the correct information is included. We also assist with ongoing support for both attorneys and deputies.

Contact our East Yorkshire and York area Power of Attorney solicitors

If you are dealing with a situation where an attorney has died or no longer wants to act, we can help you put alternative measures in place.