What happens to a Lasting Power of Attorney when someone dies?
Making a Lasting Power of Attorney (LPA) is an excellent way to prepare for later life. If the person who has made one (‘the donor’) becomes unable to make decisions for themselves, an LPA allows the appointed Attorney(s) to step in and take over.
You may know someone who has made an LPA, or you might even have been appointed as one of their Attorneys. If so, you will probably know a bit about the benefits an LPA can bring (and if you don’t – you really should! Have a look at our factsheet for more information).
But whilst you may be aware of LPAs in general, do you know what happens when a donor of an LPA passes away? Can you still act as their Attorney?
It may not be pleasant to think about, but it is crucial to know where you stand legally with regard to their LPA if they pass away.
What happens when the donor of an LPA dies?
The power granted by their LPA, or LPAs, automatically ceases. This means that if you have been acting as an Attorney under that LPA, you will no longer have the authority to manage the late donor’s affairs.
What should you do as an Attorney upon the death of a donor?
If you are acting as an Attorney under a LPA and the donor of the power dies, you must:
- Stop any action under the LPA immediately;
- Send the original LPA document and a copy of the donor’s death certificate to the Office of the Public Guardian. This must be done as soon as possible.
What happens to the donor’s property after their death?
As mentioned above, the LPA will no longer provide valid authority to deal with the late donor’s property. The idea behind this is that, upon death, all of the late donor’s property, assets, and debts will become their estate.
On their death, it will be the responsibility of the late donor’s Personal Representatives to manage this estate. Typically, this involves collecting in the estate assets, money and property, settling debts, and paying any remainder to the beneficiaries.
The term ‘Personal Representative’ is broadly used to cover anyone who has responsibility for the administration of the late donor’s estate on their death. The Personal Representatives could be executors if there is a Will appointing them, or they could be administrators if there was no Will (or in the event that a Will named executors but those people were unable or unwilling to act as such).
What if I am also one of the donor’s Personal Representatives?
Whilst it is entirely possible for an Attorney to become a Personal Representative after the donor’s death, this isn’t always the case, and it certainly isn’t automatic. Someone else may have been appointed as an executor in the Will, for example, and so you’ll need to check this.
But even if you were an Attorney before the donor’s death – and you are now a Personal Representative after it – it does not necessarily mean you can just continue acting with the required authority.
Before Personal Representatives can take any action, they usually need legal authority of their own to deal with the estate property. Therefore, they must apply for a grant of representation from the court, which provides them with this authority.
A ‘grant of representation’ is another catch-all term. The grant of representation could be a grant of probate or a grant of letters of administration. Technically, those terms depend on whether there is a Will or not. However, just to confuse matters, the terms are sometimes used interchangeably.
What should I bear in mind?
If you are acting as an Attorney, it is important to be aware that the LPA will immediately expire upon the death of the donor. Otherwise, taking unauthorised action may result in legal difficulties. This is especially true if other people will be acting as the late donor’s Personal Representatives; they will have the authority to deal with the estate property whereas you will not.