Appointing attorneys for executors

cloudofunknowing

I am helping my friend. Basically, her mother died making her two adult children executors. But both of the two children have suffered breakdowns since their mother's death. They both have long-standing mental health problems. One of my friends appointed me to be her attorney before she had a total breakdown - so I could act on her behalf to deal with her mother's estate. Is there any reason why her brother can't appoint me as well. I just want to help them to get what's theirs. I took some advice from a probate solicitor who said that one way forward would be that the Official Solicitor could act but that that would be very expensive. Any views anyone? BTW - I am very capable of dealing with the estate - it's quite straightforward. 

elsien

The official solicitor is only relevant if someone has lost capacity to carry out the executor role. And needs a financial deputyship which is going to upwards of 12 months. 

Although a simple non-contentious estate won’t come to that.

https://lakerlegal.co.uk/2021/12/what-if-an-executor-lacks-mental-capacity/

Some people may be mentally unwell but still have the capacity to make some decisions. Where does the brother sit on this?
If he is well enough to do so he could either reserve his powers and let you carry on, stepping back in as and when he wants to. Or he could renounce completely.
The other option of you acting as his power-of-attorney firstly depends on him wanting you to do that, secondly, him been well enough to make that decision and thirdly, waiting the months it will take to go through the court of protection. By which time he might have recovered anyway.

Keep_pedalling

The simplest thing to do would be for the other executor to reserve powers which would allow your to apply on your own.

cloudofunknowing

Thanks both. Neither of the siblings has capacity. 

Keep_pedalling

cloudofunknowing said:

Thanks both. Neither of the siblings has capacity. 

Then the other sibling cannot appoint you as attorney, and you will have to declare that they are not acting because they lack capacity on the probate form (reason F). Medical evidence will be required (see the notes on probate form PA1P).

Presumably you have a signed and witnessed for PA11 which allows you to act for the other sibling, but your real problems will start if one or both siblings still don’t have capacity once you have the grant of probate and need to distribute the estate. 

elsien

cloudofunknowing said:

Thanks both. Neither of the siblings has capacity. 

For what? There is no blanket "lacks capacity", it needs to be time and decision specific. So which specific decisions around these processes have they formally been assessed to lack capacity for and with treatment is  could they regain capacity in a timely enough manner to renounce or reserve if they wish to do so?
If there is no urgency, it may be worthwhile sitting on things for a bit while the siblings' treatment progresses.