What happens when an LPA attorney can no longer act

Making a Lasting Power of Attorney (LPA) is one of the most important steps you can take to plan for the future. It allows you to choose people you trust to make decisions on your behalf if you are unable to make those decisions yourself.

But what happens if the person you have chosen as your attorney can no longer act?

Perhaps your attorney becomes unwell, loses mental capacity, dies, becomes bankrupt, or simply decides that they no longer want the responsibility. Relationships can also change. If your attorney is your husband, wife or civil partner and your relationship legally ends, this can affect their ability to continue acting under your LPA.

These situations are easy to overlook when an LPA is first created. After all, when you choose an attorney, you are usually thinking about someone you know and trust today. However, an LPA is designed to provide protection for the future, potentially for many years.

Understanding what happens when attorneys can no longer act is therefore an important part of effective LPA planning.

What does it mean when an attorney can no longer act?

An attorney is the person appointed by the donor to make decisions on their behalf under an LPA. The donor is the person who made the LPA.

An attorney cannot necessarily continue acting throughout the donor’s lifetime. There are circumstances in which an attorney must stop acting, as well as circumstances in which they may choose to stop.

An attorney may no longer be able to act if they:

• lose mental capacity and are no longer able to make decisions themselves;
• decide that they no longer want to act and formally disclaim their appointment;
• are the donor’s husband, wife or civil partner and the marriage or civil partnership legally ends, unless the LPA contains an appropriate instruction allowing them to continue;
• become bankrupt or subject to a Debt Relief Order where they are acting under a Property and Financial Affairs LPA; or
• die.

There can also be circumstances where an attorney is removed or otherwise prevented from continuing to act. The important point is that appointing someone as an attorney does not guarantee that they will always be available or legally able to make decisions for you.

What happens if an attorney loses mental capacity?

Your attorney needs to have the mental capacity to make decisions for themselves. If an attorney loses mental capacity, they can no longer continue acting under your LPA.

This is an important consideration when choosing attorneys, particularly where you are appointing someone of a similar age to yourself.

For example, you may appoint your spouse as your only attorney because you have been married for many years and naturally trust them to deal with your affairs. If you both become older, however, there is a possibility that your spouse could become unable to act before you need them to.

This does not mean you should avoid appointing someone you trust. It does mean that you should think carefully about what would happen if your first-choice attorney could no longer fulfil the role.

What if an attorney decides they no longer want to act?

Being an attorney is a significant responsibility. It is possible for someone who has agreed to act as your attorney to later decide that they do not want to continue.

This is known as disclaiming the appointment.

An attorney cannot simply stop informally and assume that everything will automatically be dealt with. There is a formal process for disclaiming an attorneyship, and the relevant people need to be notified.

This is another reason why it can be sensible to discuss the appointment with your proposed attorney before making your LPA. Someone may be perfectly willing to help today but may feel differently years later because of their own circumstances, health, family commitments or financial situation.

What happens if your attorney is your spouse or civil partner?

It is very common for people to appoint their husband, wife or civil partner as an attorney. For many couples, this is a natural choice.

However, relationships can change.

If your marriage or civil partnership legally ends, the former spouse or civil partner will generally no longer be able to act as your attorney unless you have made an appropriate provision in your LPA allowing them to continue.

This is something worth considering when you make your LPA. You do not need to predict the future, but you can make decisions now about how you would want your LPA to operate if circumstances change.

What happens if an attorney becomes bankrupt?

Bankruptcy and Debt Relief Orders can affect an attorney’s ability to act under a Property and Financial Affairs LPA.

If your attorney becomes bankrupt or becomes subject to a Debt Relief Order, they can no longer act as your attorney for property and financial affairs. This restriction does not apply in the same way to a Health and Welfare LPA.

This distinction is important because there are two different types of LPA:

• Property and Financial Affairs LPA – covering matters such as money, property, bank accounts and financial affairs.
• Health and Welfare LPA – covering decisions about matters such as healthcare, treatment and where you live, when you are unable to make those decisions yourself.

What if your attorney dies?

If an attorney dies, they obviously cannot continue acting for you. What happens next depends on how your LPA was structured.

If you appointed only one attorney and did not appoint a replacement attorney, the LPA may no longer work if that attorney dies or otherwise becomes unable to act.

If you appointed several attorneys, the position can be more complicated. The answer may depend on whether they were appointed to act jointly, jointly and severally, or jointly for some decisions and jointly and severally for others.

This is why the way an LPA is drafted matters just as much as the people you choose.

Joint attorneys and jointly and severally attorneys

When you appoint more than one attorney, you need to decide how they will make decisions.

Attorneys acting jointly

If attorneys are appointed to act jointly, they generally have to make the relevant decisions together.

This can provide reassurance if you want every attorney to agree before an important decision is made. However, it can also create difficulties if one attorney becomes unable to act.

For example, imagine that you appoint your two adult children as joint attorneys. Several years later, one child loses mental capacity. Because the attorneys were appointed jointly, the remaining child may not simply be able to carry on making decisions alone.

Depending on the terms of the LPA and whether replacement attorneys were appointed, the LPA could stop working for the decisions that were required to be made jointly.

Attorneys acting jointly and severally

Jointly and severally appointed attorneys can generally make decisions either together or independently, subject to the terms of the LPA.

This can provide greater flexibility. If one attorney becomes unable to act, the other attorney may still be able to continue making decisions.

However, the right arrangement depends on your circumstances. There is no single option that is automatically best for everyone.

Why replacement attorneys matter

One of the most useful safeguards you can consider when making an LPA is appointing replacement attorneys.

A replacement attorney is someone who can step in if an original attorney can no longer act.

For example, you might appoint your daughter as your attorney and your son as a replacement attorney. If your daughter later becomes unable to act for one of the reasons covered by the LPA rules, your son may be able to step in.

Replacement attorneys can therefore provide an important layer of protection and may help prevent an LPA from becoming unusable simply because your original attorney is no longer able to fulfil the role.

What happens if you only appoint one attorney?

There is nothing inherently wrong with appointing a single attorney. For some people, it is the most straightforward and appropriate choice.

However, there is an obvious risk.

If your sole attorney can no longer act and you have not appointed a replacement, your LPA may stop working. If you have subsequently lost mental capacity, you cannot simply make a new LPA to solve the problem.

In circumstances where there is no workable LPA, someone may need to apply to the Court of Protection for authority to make decisions on your behalf. That process can be more complicated, time-consuming and expensive than having a properly prepared LPA in place from the outset.

This is why it is worth asking yourself:

• Who would act if my first-choice attorney could not?
• Have I appointed a replacement attorney?
• Would my replacement be willing and able to take on the responsibility?
• Have I chosen the most suitable way for multiple attorneys to act?

A practical example

Consider David, who creates a Property and Financial Affairs LPA and appoints his wife, Susan, as his only attorney.

David is confident that Susan is the right person to manage his finances if he loses capacity. He does not appoint a replacement attorney because he assumes Susan will always be available.

Several years later, Susan develops a condition that means she loses the mental capacity required to act.

David’s LPA will not be unable to operate because his only attorney can no longer act and there is no replacement.

If David had appointed a suitable replacement attorney when creating the LPA, there may have been a much simpler way for someone else to step into the role.

The lesson is not that everyone must appoint multiple attorneys. The lesson is that you should consider what happens if your chosen attorney cannot act and make your LPA accordingly.

What should you consider when choosing attorneys?

Choosing an attorney is not simply about picking the person closest to you. You are giving that person significant responsibility, so it is worth thinking carefully about suitability.

Before appointing an attorney, consider:

• Do you trust this person completely?
• Will they put your interests first?
• Would they be comfortable making difficult decisions on your behalf?
• Do they understand the responsibility involved?
• Are they likely to be available when needed?
• Are they capable of managing their own financial and personal affairs responsibly?
• Could they realistically continue acting if your LPA is needed many years from now?
• Who could step in if they become unable or unwilling to act?

Common mistakes to avoid

Choosing an attorney without discussing it with them

Someone may be honoured that you have chosen them but still feel unable to take on the responsibility. Have an open conversation before completing your LPA.

Assuming your spouse will always be able to act

Your spouse or civil partner may be your natural first choice, but circumstances can change. Consider what would happen if the relationship ended or your spouse became unable to act.

Not appointing replacement attorneys

A replacement attorney can provide an important safeguard, particularly if you have appointed only one original attorney.

Not thinking about how multiple attorneys will work together

Two or more attorneys can provide reassurance, but the arrangement needs to be workable. Think carefully about whether they should act jointly, jointly and severally, or under a combination of arrangements.

Assuming an LPA will automatically adapt to every change

An LPA does not simply rewrite itself when your circumstances change. The instructions and appointments you make when creating it can have significant consequences later.

Checklist: protecting your LPA if an attorney can no longer act

When making or reviewing your LPA, consider the following:

• Have I chosen someone I genuinely trust?
• Have I spoken to my proposed attorney about the responsibility?
• Have I considered what happens if my attorney loses mental capacity?
• Have I considered what happens if my attorney dies?
• What happens if my attorney decides to stop acting?
• If my attorney is my spouse or civil partner, what happens if our relationship legally ends?
• Have I considered appointing a replacement attorney?
• If I have several attorneys, do I understand the difference between acting jointly and jointly and severally?
• Would my arrangements still work if one attorney could no longer act?
• Do my instructions accurately reflect what I want?

Frequently asked questions

Can an attorney choose to stop acting?

Yes. An attorney can choose to stop acting, which is known as disclaiming their appointment. There is a formal process for doing this, rather than simply telling the donor that they no longer wish to act.

Can I appoint a replacement attorney?

Yes. When making an LPA, you can nominate replacement attorneys who can step in if an original attorney can no longer act. The way replacements operate can depend on the arrangements you have made in the LPA.

What happens if my only attorney dies?

If your only attorney dies and there is no replacement attorney who can step in, your LPA may no longer work. This is one of the key reasons to consider whether appointing a replacement attorney is appropriate for you.

Can my ex-spouse continue to be my attorney?

Generally, if your attorney is your husband, wife or civil partner and the marriage or civil partnership legally ends, they will no longer be able to act unless your LPA contains an appropriate provision allowing them to continue.

What happens if one of my joint attorneys can no longer act?

This can be particularly important. Where attorneys have been appointed jointly, the remaining attorney or attorneys may not simply be able to continue making decisions on their own. The effect will depend on the terms of the LPA and whether replacement attorneys or suitable instructions have been included.

Does bankruptcy affect a Health and Welfare LPA?

The bankruptcy and Debt Relief Order restrictions discussed above relate to Property and Financial Affairs LPAs. They do not apply in the same way to Health and Welfare LPAs.

Can I change my attorney later?

If you still have the mental capacity to make the relevant decision, there are circumstances in which you can revoke an attorney’s appointment or cancel an LPA and make new arrangements. If you have concerns about an existing LPA, it is sensible to obtain appropriate guidance before taking action.

Why getting your LPA arrangements right matters

An LPA is designed to give you control over who can make decisions for you if you are unable to make them yourself. But that control depends on the document being completed correctly and the arrangements being suitable for your circumstances.

It is easy to focus on choosing a trusted attorney and overlook the possibility that they may one day be unable to act. Yet that possibility is precisely why forward planning matters.

Thinking about replacement attorneys, how multiple attorneys should act and what should happen if circumstances change can help make your LPA more resilient.

There is also an important distinction between creating an LPA and creating an LPA that is genuinely practical. The people you appoint, the way they are appointed and the instructions you include can all affect how the LPA operates when it is eventually needed.

Lasting Power of Attorney Help, Support & Guidance Online

Making an LPA is a significant decision. It is not simply a matter of completing a form and choosing someone’s name. You are putting arrangements in place for a time when you may not be able to make important decisions for yourself.

At Libra, we understand that the terminology and choices involved in an LPA can sometimes feel complicated. Our aim is to make the process clearer, more approachable and easier to understand, while helping you consider the practical issues that can arise in the future.

Whether you are making your first LPA, reviewing an existing arrangement or simply want to understand more about how attorneys and replacement attorneys work, having the right information can help you make more informed decisions.

Key takeaways

• An attorney may have to stop acting if they lose mental capacity, die, become bankrupt in relevant circumstances, cease to be the donor’s spouse or civil partner, or otherwise become unable to act.
• An attorney can also choose to stop acting by formally disclaiming their appointment.
• Appointing a replacement attorney can help protect your LPA if your original attorney can no longer act.
• If you appoint multiple attorneys, think carefully about whether they should act jointly or jointly and severally.
• If your attorney is your spouse or civil partner, consider what you would want to happen if your relationship legally ends.
• Do not assume that an LPA will continue to operate exactly as expected if one attorney can no longer act.
• Good LPA planning considers not only who you trust today, but what could happen in the years ahead.

Get help with your Lasting Power of Attorney

Putting an LPA in place is about more than preparing for the unexpected. It is about giving yourself greater control over what happens if you are no longer able to make decisions for yourself.

If you are considering making an LPA and want straightforward, practical guidance, Libra can help you understand the process and the choices available to you.

Take the next step towards putting your LPA arrangements in place with confidence. Contact Libra today for Lasting Power of Attorney help, support and guidance online.