Being appointed as an attorney is a significant responsibility. There may be situations, however, where the appointed attorney feels unable or unwilling to continue. In such cases, the attorney will need to look at disclaiming the LPA and this article covers what the attorney needs to know.
Understanding the Role of an Attorney under an LPA
The Responsibilities of an Attorney
An attorney under a Lasting Power of Attorney (LPA) can be tasked with managing the donor’s property and financial affairs, health and personal care, or both. This may involve:
- Making decisions about the donor’s finances, such as paying bills, managing investments, or selling property.
- Making decisions about the donor’s health and welfare, including where they live, their medical treatment, and day-to-day care.
The role demands a high level of trust, as the attorney must always act in the donor’s best interests, following any instructions or preferences the donor has set out in the LPA. (See Acting as an attorney for more details.)
Why Might an Attorney Want to Disclaim?
There are various reasons why an appointed attorney might choose to disclaim their role:
Personal Circumstances: Changes in personal circumstances, such as illness, relocation, or increased responsibilities, might make it difficult to fulfill the duties of an attorney.
Conflict of Interest: The attorney may find themselves in a situation where their interests conflict with those of the donor.
Unwillingness or Inability: The attorney may simply feel unprepared, uncomfortable, or unwilling to take on the role.
Lack of Time or Resources: The attorney may not have the time, resources, or expertise needed to perform the duties effectively.
The Process of Disclaiming the LPA
Step 1: Review the LPA Document
Before disclaiming, it is important to review the LPA document thoroughly. The document may include specific instructions regarding how and when an attorney can disclaim their appointment. Additionally, it may appoint a replacement attorney who will take over the responsibilities.
Step 2: Complete the Disclaiming Form
In England & Wales, an attorney must complete a disclaimer form: LPA005 – Disclaimer by an attorney or replacement attorney.
The form requires the attorney to provide:
- The LPA reference number
- The donor’s name and address
- The attorney’s details
- A statement of disclaimer
Step 3: Send the Form to the Relevant Parties
After completing the LPA005 form, the original should be sent to the donor (if they have capacity). A copy should then be sent to any other attorneys and the replacement attorney, if there is one. It is also advisable to retain a copy of the form for personal records.
Step 4: Notify the Office of the Public Guardian
If the LPA has been registered with the Office of the Public Guardian (OPG), the attorney must notify the OPG of their decision to disclaim. The original LPA must be sent back to the OPG and they will then stamp the LPA to show that the attorney has been removed. The OPG will also update their records to reflect the change.
Step 5: The new or replacement attorney
The new attorney needs to make sure that they receive the LPA with the OPG stamp on the original document. This can then be used to show who the new attorney is.
Legal and Practical Implications of Disclaiming
What Happens After an Attorney Disclaims?
When an attorney disclaims their role, the responsibility may pass to any co-attorneys or a replacement attorney named in the LPA but, what if there is no replacement? This will depend on whether the donor has lost mental capacity or not. If the donor still has capacity, they can appoint a new attorney. If the donor has lost capacity and the attorney is a sole attorney and there is no replacement, the attorney should inform the authorities, e.g. social services, before they disclaim their position. The relevant authority will then have to appoint a court-appointed deputy.
The Importance of Timing
It is crucial to disclaim as soon as possible if you decide not to act as an attorney. Delaying the disclaimer could complicate the situation, especially if the donor has lost capacity and the attorney is needed to make urgent decisions. It can take several weeks or sometimes months to disclaim the position, appoint a new attorney or deputy and then have the LPA in place in order to use it.
Potential Legal Consequences
Failing to act as an attorney or improperly disclaiming can lead to legal consequences. For instance, if an attorney does not notify the relevant parties or continues to act as an attorney after disclaiming, they may be held accountable for any decisions made during that period.
Conclusion
Disclaiming your appointment as an attorney under a Lasting Power of Attorney is a serious decision that should not be taken lightly. The process involves careful consideration of your ability to fulfill the role, understanding the legal steps required and communicating your decision to all relevant parties. By following the proper procedures, you can ensure that the donor’s interests are protected and that you are not legally liable for responsibilities you are unable to fulfill.
If you are considering disclaiming your appointment as an attorney, it may be beneficial to seek legal advice to ensure that your decision is handled correctly and in compliance with the law.
