Power of Attorney After Death – Is it Valid and How Does it Work?

26 Mar 2021

SPEAK WITH ONE OF OUR SPECIALIST POWER OF ATTORNEY SOLICITORS

A Lasting Power of Attorney (LPA) is a legal document that allows you to appoint those you trust to look after either your financial affairs or your health and welfare. There is no limit to how many attorneys a person can appoint.

Whilst thinking about your own deterioration, or that of a family member, can be upsetting, an LPA can only be put in place when the donor still has the mental capacity to make their own decisions. Once mental capacity has been lost, an LPA cannot be put in place. This means it’s essential to plan ahead to prevent any complications that may arise if clear, legal pathways are not laid out.

The LPA documentation should be prepared with the support of a solicitor and must then be registered with the Office of the Public Guardian. But what happens if the donor or attorney dies?

Is a Lasting Power of Attorney valid after death?

If the donor dies…

A Lasting Power of Attorney only remains valid during the lifetime of the person who made the LPA. This means that if the person who granted the LPA dies, it will end.

In this situation, the named attorneys must contact the Office of the Public Guardian to inform them of the death and provide the original LPA document, all certified copies of the LPA and a copy of the death certificate.

As an LPA is no longer valid after the donor dies, the attorney can no longer manage the deceased donor’s affairs. With this in mind, it’s important you also have a Will in place to ensure your assets will be passed onto those you wish to inherit.

If the attorney dies…

If the named attorney dies before the person who granted the LPA, the next steps will depend on what has been outlined within the original LPA document. There are several scenarios that may occur.

If a replacement attorney has been nominated within the LPA, then this trusted person may take the place of the deceased attorney.

However, if the LPA only names one attorney and no replacement attorneys have been nominated, the LPA will no longer be valid if that attorney dies. In this scenario, the donor will need to make a new LPA, providing they still have the mental capacity to do so.

If multiple attorneys have been appointed, and the LPA states they can make decisions independently of one another, the LPA remains valid.

However, if multiple attorneys have been appointed, but the LPA states they can only make decisions jointly, the LPA may not remain valid. This is because the remaining attorneys may not be able to make decisions independently of the deceased attorney.

Woman holding the arm of an elderly man

Specialist Power of Attorney Solicitors

Our Power of Attorney Solicitors at Hepburn Delaney can guide you through the process of drafting your LPA and provide you with expert advice with your best interests in mind. Our team ensure that you’ve considered all potential avenues, including the death of an attorney and having a replacement attorney in place.

If you would like further information about organising a Lasting Power of Attorney, or revoking an LPA, please do not hesitate to get in touch today.