Client wants an lpa which appoints spouse as sole attorney and their three children as replacement attorneys (to act jointly).
If one of the children were to die first and then the spouse, would the other two children still take up the role as the replacement attorneys or does an instruction need to be included to state that the remaining children can act as the replacement.
Does any reply differ if the attorney was to die after taking up the role as replacement attorney or withdraw or subsequently be unable to act?
I do not know if you have had any replies to this but your post came up on my Summary email. I would think but others may correct me that if the three children are to be appointed jointly as replacement attorneys that if one of them dies before the spouse, the appointment of the other two would fail as they were appointed jointly and that is seen as a single unit. I am not convinced that an instruction stating that the remaining children can act as the replacement would pass muster with the OPG as it is goes against the meaning of a joint appointment.
My reply does not not differ if the attorney were to die after taking up the role as replacement attorney or withdraw or subsequently be unable to act as a joint appointment is seen as a single unit. If you client wants the flexibility you suggest, he needs to go for a joint and several appointment. I always tell clients that a ‘joint’ appointment gives peace of mind that all attorneys have to agree but ‘joint’ appointments cause problems for reasons set out on the lpa form. Joint and several gives more flexibility but the client needs to be happy with any one of the attorneys acting on their own or two of them acting. Ideally they will all get on and trust one one another.
You do not say how old your clients are but are they both happy acting as sole attorney and will they be in say 10/15/20 years time. I appreciate that everyone’s circumstances are different, but I often find that when this question is posed to clients that add their children as first choice attorneys too on a joint and several basis or appoint say spouse and one child and then two as replacements