Q&A What happens if a reserve attorney in an LPA needs to step up and act?

Q:        I set up my LPA with 2 attorneys and a reserve attorney. Paperwork has now been received by me and my 2 attorneys to say both parts have been registered, and we have now all ‘opened an account’ at the OPG. However, the reserve attorney has received nothing from the OPG and nowhere can I find any info regarding what has to happen if a reserve attorney is required to step up. Please can you explain?

A:        The replacement attorney will know he is involved when he is asked to sign the relevant page of the lasting power of attorney form, but he should be advised of his role and when he would be called upon to act as attorney.   

A replacement attorney can only be involved when the original attorney/s cannot act, for example if they are no longer capable of acting, they have died, or they resign by signing a disclaimer form. In such circumstances the office of the public guardian will require proof that the original attorney cannot act. This can be a lengthy process and will also involve a court fee. 

The way around this problem would be to consider appointing the replacement attorney as joint attorney at the outset, with the attorneys appointed to act jointly and severally. This would mean that the attorneys could either act together or individually, thereby giving the replacement attorney more options. This would however depend on what you, the donor, would want to happen.

If, as in your case, the donor is faced with the situation where he or she has already drawn up the lasting power of attorney document, then they could always cancel it and start again, but of course this would incur another court registration fee and possibly legal fees.

By instructing a solicitor to prepare the LPA for you and with clear information from your professional adviser this problem is avoidable.  

This question has been answered by Jessica Wright, a Solicitor with GHP Legal.  If you would like to speak to someone about this or any other legal matter, please visit our website www.ghplegal.com and use the contact us form, or call us on: Wrexham 01978 291456, Llangollen 01978 860313, Oswestry 01691 659194 

Jessica Wright

Jessica Wright

Solicitor

Part of our Probate, Wills, Tax and Trusts team in Oswestry.