A Lasting Power of Attorney or LPA gives an attorney the legal authority to make decisions on someone’s behalf, should they ever lose the mental capacity to do this themselves. There are two types of LPA:
- Property and financial affairs LPA; and
- Health and welfare LPA
Different attorneys can be appointed for each type of LPA. More than one attorney can be appointed and it is also possible to name back-up attorneys.
I want to stop acting as an attorney under an LPA
The role of an attorney can be onerous and time-consuming. For example, if you are a property and financial affairs attorney, you will be responsible for managing all of the donor’s assets. This could involve insuring and maintaining their property, renting it out, arranging payments for care, applying for benefits, including any entitlement to care home fees, managing investments and paying their bills.
Over time, your situation may change and you may no longer have the time to be an attorney or it might be the case that the job is simply too much for you to manage yourself.
You should discuss stepping down with an LPA solicitor or with the Office of the Public Guardian (OPG) to ensure that the person you help will have the assistance they need in the future. The OPG is a government body that oversees attorneys and protects the interests of vulnerable individuals who are unable to manage their own affairs.
If a replacement attorney is named in the LPA document, then this individual can take over the role.
To end your involvement, you will need to fill in the government’s form LPA005 disclaiming your appointment. The original form needs to be sent to the donor and a copy sent to any other attorneys.
If the LPA has been registered with the OPG, they will need to have a copy of the form. You should also send them any copies of the LPA in your possession.
What happens if stepping down leaves the donor with no attorney?
If there is no back-up attorney named or the LPA becomes invalid because a joint attorney is only authorised to take decisions jointly with you, then the donor will be left without anyone to represent them.
If they have lost the mental capacity to manage their affairs, they cannot make a new LPA at this time or appoint a new attorney.
In this case, a family member may need to apply to the Court of Protection to become a deputy. The deputy will then have similar powers to an attorney to manage the individual’s finances.
How to avoid being left without an authorised attorney
It is preferable to avoid the need to apply for a deputyship order wherever possible. The process is longer and more complicated than registering an LPA and there is more ongoing expense and monitoring for a deputy to comply with.
You can reduce the risk of being left without a deputy by appointing replacements when you make your LPA. If you appoint two or more attorneys, you can also consider whether you want to stipulate that a single attorney could continue to act on their own if the other(s) stepped down.
When deciding who to appoint as your attorney, you need to consider whether your chosen individuals will have the time and ability to take on the role. It may also be advisable to choose someone younger than you, so that there is a better chance that they will be able to take on the task, should it ever be needed.