Replacement attorneys acting under an lpa

An old chestnut I know, but dealing with Banks under a Lasting Power of Attorney is constatly frustrating. Prof and Mrs H have appointed each other under LPAs for Property & Financial Affairs, with
Son and Daughter as Replacements, to act jointly & severally. Both Prof and Mrs H are in declining health, both mentally and physically, and are unable to act as each others attorney, but need help with managing their financial affairs. Both HSBC and Halifax
are refusing to accept the LPAs, saying that they need to go back to the OPG for amendment! Does any subscriber to the Forum have experience of this and, if so, is there a “get out of jail free” card?

Clive Barwell

Wren Sterling

Just had a slightly similar situation where original attorney had died and Equiniti refused to accept replacements unless it had been ‘re-registered’ with OPG. In fact you return the LPA to the OPG with evidence (in my case death certificate) and they just stamp the form to show that the replacements are now acting - they returned it pretty quickly. In your case I am not sure what the evidence would be - if they have lost capacity then perhaps a letter to that effect from the doctor?

Marie Granby
Maxwell Hodge

The conditions when an attorney can’t act are defined in the Act. An attorney can’t act for you if they:

  • lose mental capacity
  • decide they no longer want to act as your attorney (known as ‘disclaiming their appointment’)
  • become bankrupt or subject to a debt relief order and were an attorney for a financial LPA

So “in declining health” isn’t a valid criterion for the replacements to step in. They will either need to “disclaim” first or be assessed by a professional to say that they have actually most mental capacity.

Andy Parker,
Director, Cornerstone Wills Ltd

The replacement attorneys are meant to notify the OPG when the original attorney can no longer act and my understanding is that the OPG will note the LPA accordingly. Otherwise how will the banks be sure that the replacement attorney’s appointment has taken effect?

Paul Davies
Clarke Willmott LLP

If the children are replacements then it would be simpler for Prof and Mrs H to disclaim their appointment to trigger the replacements stepping in. Otherwise you will need medical evidence to confirm they have lost capacity to trigger the replacements. Either way the forms have to go back to the OPG to be updated to show that Prof and Mrs H can no longer act as attorneys so the replacements have authority to act. They will just stamp the forms accordingly and return them.

Maria Goodacre
Bells Solicitors Ltd

The reasoning behind the HSBC and Halifax is not mentioned but effectively they are correct in stating the LPAs need to be amended by the OPG.
As I understand it if replacement attorneys need to act the original attorney must disclaim by deed and register the same with the OPG. I believe the OPG has a standard form they use for this purpose.
If all 3 attorneys in this case, had been appointed when the LPA was created then the “two in waiting” could simply begin acting under the authority of the LPA without further ado.

Jonathan Blackburn
Blackburn Wealth Protection Ltd

Yes i have just had to do this where the spouse does not feel able/willing to take on the task. In my circumstance, we downloaded the form LPA 0005 for the spouse to disclaim to act and once completed it is sent with the original LPA back to the OPG to make the endorsements on the LPA itself.

Monika Patel
Stapletons Solicitors