Replacement Attorneys: What Happens If Your Original Attorneys Can’t Act?
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When you make a Lasting Power of Attorney (LPA), you can name replacement attorneys. These are individuals who step in if one or more of your original attorneys are no longer able to act. Careful planning is essential to ensure that your wishes continue to be followed if something changes.
What Is a Replacement Attorney?
A replacement attorney is someone you appoint in your LPA to take over if one or more of your original attorneys can’t continue. This could be due to:
- Death
- Loss of mental capacity
- Resignation
- Divorce or civil partnership ending (if your attorney was your spouse)
- Being removed by the Court of Protection
Note: Divorce doesn’t revoke your LPA, but your ex-spouse’s appointment as attorney is automatically cancelled unless your LPA says otherwise. This could cause the LPA to fail, depending on how it was set up.
When Do Replacement Attorneys Start Acting?
This depends on how your original attorneys were appointed in your LPA:
1. Sole Attorney Appointment
If you appointed one original attorney, the replacement attorney(s) only step in if that person can no longer act.
Example:
Lucy appoints her friend Ben as her sole attorney and names her brother Joe as a replacement. If Ben loses capacity, Joe takes over fully.
2. Joint Appointment
All attorneys must act together. If even one of them can’t act, the whole group is replaced — the appointment fails, and only the replacement attorney(s) take over.
Example:
Anna appoints her two sisters, Sarah and Rachel, to act jointly. She names her cousin Emma as a replacement. If Rachel resigns, both Sarah and Rachel stop acting, and Emma takes over on her own.
Key Point:
With joint appointments, it’s all or nothing — if one attorney can’t act, none of them can.
3. Joint and Several Appointment
Attorneys can act individually or together. If one original attorney can’t act, the others continue. A replacement attorney can then step in and act alongside the remaining originals.
Example:
James appoints his wife and his son to act jointly and severally. He names his daughter as a replacement. If his wife passes away, his son continues, and the daughter joins him as an acting attorney.
Can I Set Conditions for Replacement Attorneys?
Yes — your LPA can include instructions about when and how replacements act. For example:
“If either of my parents (my original attorneys) can no longer act, I want my sister to replace the first one who stops. If the other later becomes unable to act, my brother should replace them.”
You can also specify that all original attorneys must be unable to act before any replacements step in.
What Can’t a Replacement Attorney Do?
- They can’t act temporarily — once appointed, they step in permanently.
- They can’t be appointed to replace another replacement attorney.
- You can’t set instructions that apply only to the replacement attorneys — instructions must apply to all attorneys equally.
Why Is This Important?
If no replacement attorneys are named and your original attorneys can no longer act, your LPA could become invalid — and someone may need to apply for a Deputyship Order through the Court of Protection. This can be time-consuming, expensive, and stressful.
Final Thought:
Life evolves — Regular reviews help ensure the right people are still in place to act on your behalf.”
Naming the right replacement attorneys gives you peace of mind that your affairs will still be managed smoothly — no matter what happens.
Make confident decisions today and avoid costly mistakes — Get in touch