When an individual (known as a donor) gives authority to another person to make decisions about their welfare and/or financial matters, this is correctly done through a Power of Attorney.
The two main types are:
General (or Ordinary) Power of Attorney; or
Lasting Power of Attorney (LPA).
I will discuss the General Power of Attorney in a future blog, but today I am going to talk about Lasting Powers of Attorney and in particular, when, and how, they end. For information about what a Lasting Power of Attorney is, see my blog here.
Once the LPA has been registered, it will continue even after the Donor loses capacity and will end upon the Donor’s death. However, I will outline a few scenarios where the LPA can be terminated before the Donor dies.
Ending an LPA early
1. It may be the case that the Donor has had a falling out with one or more of the Attorneys. In this case, the Donor needs to formally ‘revoke’ the LPA and inform the Office of the Public Guardian (OPG). It is crucial that all copies of the LPA held by the ‘removed’ Attorney are retrieved and, if there are no more Attorneys left, the Donor should, at the same time, make a new LPA. Simply making a new LPA will not automatically revoke any previous Powers of Attorney.
2. Certain people are not allowed to be an Attorney in the first place, for example, if you are Bankrupt or subject to a Debt Relief Order. So, if an Attorney (for Property & Affairs) becomes Bankrupt after being appointed, their appointment ends.
If there are more than one Attorneys, but only one of them becomes bankrupt, the whole LPA may become invalid. This will happen if the Attorneys are appointed Jointly, as opposed to Jointly & Severally.
3. An Attorney may decide to terminate the appointment themselves, i.e. they disclaim their appointment. They do not need to give a reason, but they would need to notify the OPG. The same pitfall as mentioned about will apply if there are more than one Attorneys appointed Jointly.
4. If the Attorney loses the capacity to manage their own affairs, it goes without saying, that they cannot continue to act as an Attorney.
5. If the Attorney is married to (or in a Civil Partnership with) the Donor and they later divorced, then, unless the LPA allows for this to continue) the Attorney will not be able to act.
However, a lot of the pitfalls of the LPA ending earlier than intended can be mitigated by ensuring you:
- carefully pick your Attorneys
- appoint them Jointly & Severally unless you really need/want the security of them acting Jointly (but if that is the case, you should think carefully if they are suitable Attorneys in the first place).
- Aim for 2-4 Attorneys or have some replacement Attorneys as a backup.
If you have any questions, then please do not hesitate to call me on 0116 2505747