Lasting Power of Attorney What happens if an attorney dies?

Having a Lasting Power of Attorney (LPA) in place gives you the security of knowing that someone will be able to deal with your affairs, should you ever lose the ability to manage them yourself. However, if an attorney dies, it can cause a problem. Today at S Bish Estate Planning we take a look at how to put contingency plans in place and what to do if a loved one is left without an attorney.

Everyone is advised to have an LPA in place. Should you become unable to make your own decisions, the attorney you have appointed will be able to step in and represent you. There are two types of LPA, one in respect of property and financial affairs and one in respect of health and welfare. You can make either or both.

Under a property and financial affairs LPA, an attorney can take actions such as make investments on your behalf, insure and maintain property, collect benefits and pension payments and pay bills.

A health and welfare LPA allows an attorney to make decisions such as where you will live, what your daily routine will be and what medical treatment you will receive or refuse.

Choosing an attorney

When you choose an attorney, you may want to consider someone younger than you so that there is a better chance that they will be willing and able to take on the role, should it ever be necessary. It can be challenging to manage someone else’s affairs and you should consider whether the person you are considering will have the time and ability.

How to avoid being left without an attorney

If you appoint a single attorney, there is a risk that should something happen to them, you could be left without a representative. There are two options that can safeguard against this.

Firstly, you can appoint more than one attorney. If you allow them to act jointly and severally, ie. a single attorney can make decisions on their own, then if one attorney dies, the other can continue to represent you.

If you have appointed joint attorneys but you want them to make all decisions together, then should one of them die, the other will be unable to act and you will be left without an attorney.

The second option is to name replacement attorneys. This is particularly important if you are only appointing one attorney or you do not want your joint attorneys to act independently. You can have more than one replacement and list the order in which you would like them to be appointed.

What happens if an LPA attorney dies and no-one else can act?

If an attorney under an LPA dies and there is no joint attorney able to act and no replacement attorney, then the individual will be left with no representative.

Family members can make an application to the Court of Protection for a deputyship order. This will give them some authority to make decisions for the patient, but will generally be more restricted than an LPA. The order will list what authority the deputy will have.

Obtaining a deputyship order can take many months. It is a more complex process than putting an LPA in place, which is very straightforward. It is also more expensive to apply for deputyship and there is more ongoing supervision, along with an annual supervision fee.

It is generally preferable to have an attorney wherever possible. As well as being easier, you will have the reassurance of knowing that the patient has their chosen representative and that they have had the opportunity to discuss with them beforehand the sorts of decisions they would like them to take.