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Replacement Attorney

Also known as: Successor Attorney, Backup Attorney

Definition

A replacement attorney is a backup person named in a Lasting Power of Attorney who automatically steps in if one of the original attorneys can no longer act on the donor's behalf.

Appointing replacement attorneys provides essential continuity for your LPA—without them, your LPA could become invalid if all your original attorneys can't serve.

What Does Replacement Attorney Mean?

Under the Mental Capacity Act 2005, replacement attorneys are people you choose when creating your Lasting Power of Attorney to step in if your original attorneys cannot continue acting. They must meet the same legal requirements as original attorneys: be aged 18 or over, have mental capacity, and not be bankrupt for property and financial affairs LPAs. All replacement attorneys must be named when you create and sign your LPA—you cannot add them later without making an entirely new LPA.

Replacement attorneys step in automatically when an original attorney permanently can't act anymore. According to GOV.UK guidance, this happens when the original attorney dies, loses mental capacity themselves, disclaims their appointment, divorces or dissolves a civil partnership with the donor (unless your instructions state otherwise), or becomes bankrupt or subject to a debt relief order (for property and financial affairs LPAs only). The Office of the Public Guardian must be notified when a replacement attorney begins acting, though they now verify deaths using the Life Event Verification system.

How replacement attorneys step in depends on your appointment structure. If you appointed original attorneys jointly (making decisions together), and one can't act, all replacement attorneys step in together to replace both originals—not just the one who dropped out. Sarah appointed her husband and brother as joint attorneys with her daughter Emma as replacement. When her husband died, Emma replaced both original attorneys, becoming Sarah's sole attorney. If you appointed attorneys jointly and severally (making some decisions independently), a replacement joins the remaining original attorneys. Jennifer appointed three attorneys jointly and severally with her granddaughter Sophie as replacement. When one original attorney lost capacity, Sophie joined the other two originals, maintaining three active attorneys.

Replacement is permanent, not temporary. Once a replacement attorney steps in, the original attorney cannot resume their role later. Replacement attorneys cannot act during temporary absences like holidays—they only become active when an original attorney permanently cannot continue. You also cannot appoint "successive" replacement attorneys (replacements for your replacement attorneys)—UK law permits only two levels of appointment following a 2013 Court of Protection ruling.

Common Questions

"When does a replacement attorney step in?" A replacement attorney steps in automatically when an original attorney can no longer act—for example, if they die, lose mental capacity themselves, disclaim their appointment, divorce the donor (unless instructions state otherwise), or become bankrupt (for property and financial affairs LPAs). The Office of the Public Guardian must be notified when this happens.

"Can I appoint multiple replacement attorneys?" Yes, you can appoint multiple replacement attorneys in your LPA. However, be aware that unless you specify otherwise in your instructions, replacement attorneys will act jointly and must make all decisions together. You can also specify the order in which they step in if your original attorneys were appointed jointly and severally.

"Do replacement attorneys have the same powers as original attorneys?" Yes, replacement attorneys have the same powers and responsibilities as the original attorneys unless you specify different limits in your LPA. They must follow the same legal duties, act in your best interests, and comply with any instructions or preferences you've included in the document.

Common Misconceptions

Myth: "I can use my replacement attorney temporarily while my original attorney is on holiday."

Reality: Replacement attorneys can only act when the original attorney permanently cannot act anymore (due to death, incapacity, disclaiming appointment, etc.). Once a replacement steps in, the change is permanent—the original attorney cannot resume their role later.

Myth: "I can appoint replacement attorneys after my LPA is registered, if I need them later."

Reality: All replacement attorneys must be named when you create and sign your LPA. You cannot add replacement attorneys to an existing LPA after it's been signed or registered. If you want to add replacements later, you must create an entirely new LPA.

  • Attorney (LPA Context): Replacement attorneys are backup attorneys who step in when original attorneys can no longer act.
  • Donor (LPA Context): The person who creates the LPA and appoints both original and replacement attorneys.
  • Lasting Power of Attorney (LPA): The legal document in which replacement attorneys are named to ensure continuity if original attorneys cannot act.
  • Jointly and Severally: An appointment structure that determines whether replacement attorneys join remaining originals or replace all originals when stepping in.

Need Help with Your Will?

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Legal Disclaimer:

This article provides general information only and does not constitute legal or financial advice. WUHLD is not a law firm and does not provide legal advice. Laws and guidance change and their application depends on your circumstances. For advice about your situation, consult a qualified solicitor or regulated professional. Unless stated otherwise, information relates to England and Wales.