Can POA act as Executor if executor mentally incapacitated?

balooney2000

Hi,

I have an active power of attorney for an elderly relative. The same relative is named as joint executor in a will. The named executor is now mentally incapacitated (POA in place) and would not be in a position to act as an executor. Does this mean I (as POA) can be required to represent this relative in the role of executor ?

Thanks

System

No the person with POA can only act for personal matters. The relative is not in a fit state to take on the role and executorship will fall to the remaining named person

Tuesday_Tenor

What the PA1a Guidance to the PA1 Probate Application form actually says about EPA/LPA is below.

To me it implies that if the person had not already lost capacity then the EPA/LPA attorney could act for them to execute the will. In the OP's case the person has already lost capacity, so !!!!!!'s response is correct.

The info below says to contact the Probate Office if the person has already lost capacity. I assume this is because the person will not even be able to sign to renounce the role.

There is also another reason why the attorney couldn't be called on to act as executor in the OP's case. According to the PA1a notes, an attorney (whether LPA, EPA or ordinary) for an executor can only act alone as an executor, not with another existing executor. As in this case there IS another named joint executor who can act, no attorney (EPA/LPA or ordinary attorney) can be appointed to take over from the executor who can't/doesn't want to act.

PA1a Guidance:
If the person entitled to the grant has already signed an Enduring Power of Attorney (EPA), or a Property and financial affairs Lasting Power of Attorney (LPA) please send the original document to us. An LPA must be registered with the Office of the Public Guardian before it can be used. If the donor of the EPA or LPA is unable to make a decision for him/herself due to an impairment of or a disturbance in the functioning of the mind or brain (i.e. lacks capacity under the Mental Capacity Act (MCA) 2005) please contact us

g6jns_2

balooney2000 wrote: »

Hi,

I have an active power of attorney for an elderly relative. The same relative is named as joint executor in a will. The named executor is now mentally incapacitated (POA in place) and would not be in a position to act as an executor. Does this mean I (as POA) can be required to represent this relative in the role of executor ?

Thanks

The POA only entitles the attorney to do acts that benefit the donor. Acting as executor is an entirely optional procedure so it does not come within the attorney's remit.

Tuesday_Tenor

g6jns wrote: »

The POA only entitles the attorney to do acts that benefit the donor. Acting as executor is an entirely optional procedure so it does not come within the attorney's remit.

I understand this.

As this is the case, I don't fully understand why there are sections on the PA1 form that make reference to the person completing it having EPA/LPA for the person who would be entitled to act as executor. One for the Probate Office to answer, to anyone who needs to understand, I guess.

getmore4less

Tuesday_Tenor wrote: »

What the PA2 Guidance to the PA1 Probate Application form actually says about EPA/LPA is below.

To me it implies that if the person had not already lost capacity then the EPA/LPA attorney could act for them to execute the will. In the OP's case the person has already lost capacity, so !!!!!!'s response is correct.

The info below says to contact the Probate Office if the person has already lost capacity. I assume this is because the person will not even be able to sign to renounce the role.

There is also another reason why the attorney couldn't be called on to act as executor in the OP's case. According to the PA2 notes, an attorney (whether LPA, EPA or ordinary) for an executor can only act alone as an executor, not with another existing executor. As in this case there IS another named joint executor who can act, no attorney (EPA/LPA or ordinary attorney) can be appointed to take over from the executor who can't/doesn't want to act.

PA2 Guidance:
If the person entitled to the grant has already signed an Enduring Power of Attorney (EPA), or a Property and financial affairs Lasting Power of Attorney (LPA) please send the original document to us. An LPA must be registered with the Office of the Public Guardian before it can be used. If the donor of the EPA or LPA is unable to make a decision for him/herself due to an impairment of or a disturbance in the functioning of the mind or brain (i.e. lacks capacity under the Mental Capacity Act (MCA) 2005) please contact us

you have misunderstood the highlighted. you can't act in executor capicity as your self and POA. no problem acting as a second executor with another person.

Tuesday_Tenor

getmore4less wrote: »

you have misunderstood the highlighted. you can't act in executor capicity as your self and POA. no problem acting as a second executor with another person.

First of all, apologies for calling the Guidance Notes PA2; it should be PA1a.

This is where I got my understanding from. See bolded bit at E. Seems pretty clear to me:

A6:
Please state the names of any executors named in the will who are not applying for the Grant ofProbate and show one of the following reasons for this:-
A The executor died before the deceased.
B The executor died after the deceased.
C The executor does not wish to apply for probate now but wishes to reserve the right to act as executor in the future if necessary – this option is referred to as having “power reserved”.
D The executor does not wish to apply for probate at all. This is referred to as “renouncing”.It means that they gives up all their rights to act as executor.
E The executor wants to appoint another person to act as their attorney to take the Grant of Representation out on their behalf. Please note, however, that the attorney of one executor
cannot take a grant jointly with an executor acting in his own right.

Crabapple

A normal LPA or EPA does not cover Executorships. The appointment of an attorney has to be done in specific form just for the Executorship.

Mental capacity would be needed at the time of making this appointment.

getmore4less

Tuesday_Tenor wrote: »

First of all, apologies for calling the Guidance Notes PA2; it should be PA1a.

This is where I got my understanding from. See bolded bit at E. Seems pretty clear to me:

A6:
Please state the names of any executors named in the will who are not applying for the Grant ofProbate and show one of the following reasons for this:-
A The executor died before the deceased.
B The executor died after the deceased.
C The executor does not wish to apply for probate now but wishes to reserve the right to act as executor in the future if necessary – this option is referred to as having “power reserved”.
D The executor does not wish to apply for probate at all. This is referred to as “renouncing”.It means that they gives up all their rights to act as executor.
E The executor wants to appoint another person to act as their attorney to take the Grant of Representation out on their behalf. Please note, however, that the attorney of one executor
cannot take a grant jointly with an executor acting in his own right.

Agree now, done a bit more research