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  • Writer's pictureMiGem

What happens when an Attorney passes away?

When a client is wanting to a make a Lasting Power of Attorney we, as the Associates, advise the client on the best possible attorneys from people who live nearby to the age of the person, but sadly there are times when someone makes a Lasting Power of Attorney (LPA) and the person appointed to act as their Attorney falls seriously ill, and is unable to act or passes away unexpectedly.

If a client’s Attorney can no longer act, then they need to check what the terms of their current LPA are. If they don’t have any Replacement Attorneys, they will need to make a new LPA. This is why it is very important that the correct advice is given, including the way attorneys should act, and the importance of having replacements.

What happens when an attorney is unable to act depends on what provisions the client has made in their LPA.

MORE THAN ONE ATTORNEY

If the client has appointed more than one Attorney they need to check how they have appointed them.

Have they instructed them to act ‘jointly’, ‘jointly and severally’, or ‘jointly for some decisions, jointly and severally for others’?

If others have been appointed:

  • Jointly – they must unanimously agree on decisions

  • Jointly and severally – they can make decisions without the agreement of the other Attorneys

  • Jointly for some decisions, jointly and severally for others – they must act jointly in some important decisions (as dictated by you in your LPA) but not for others If the Attorneys have been appointed jointly and severally, they can continue to make decisions on the client’s behalf – even if one Attorney becomes permanently unable to act.

Therefore, if you’ve appointed your Attorneys:

  • Jointly – your Lasting Power of Attorney will no longer work

  • Jointly for some decisions, jointly and severally for others – your Attorneys will no longer be able to act in joint decisions

REPLACEMENT ATTORNEYS

An LPA allows you to nominate Replacement Attorneys. Replacement Attorneys are there to step in, should circumstances dictate that the original Attorney can no longer act, and it is recommended that everyone appoints replacements.

The way the Replacement Attorney acts will again depend on how the original Attorneys were appointed. If they were appointed to act:


  • Jointly and severally – and one of the original Attorneys cannot fulfil the role, the Replacement Attorney can effectively step into the original Attorneys shoes

  • Jointly/jointly for some decisions – all of the original Attorneys must step down and the Replacement Attorney will take over

ONE ORIGINAL ATTORNEY

If the client only had one the Attorney and that person has fallen ill or has pre-deceased, and they don’t have any Replacement Attorneys, they will need to make a new LPA if they still have capacity to do so.

Let us help


MiGem

Life Well Planned



Source: Charlotte Merrills - Compliance & Associate Support Technician - APS Legal & Associates - May 2021



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