Executors and Dementia

George1701

My Father has recently died. He made a will twenty years ago making my mother the sole beneficiary and executor, stating that in the event of my mother predeceasing him, myself and my brother would become the executors. Unfortunately, my mother has since contracted Alzheimer's and is unable to act as executor. I am the registered LPA (lasting power of attorney) for my mother, so my question is, can I apply to act on her behalf as executor ?.

elsien

Yes you can act in her place. 

Brie

Not sure if it would make a difference but does it say on what basis you and brother are executors?  I think in my mom's will it states that any 2 siblings out of all of us can be executors but that's not in the UK. 

msb1234

If the Executor who has lost capacity is the sole Executor and there are no substitute Executors, or those Executors are unable or unwilling to act themselves, then someone else will need to act in place of the incapacitated Executor.

4. If the incapacitated Executor has appointed an Attorney under a Lasting Power of Attorneyor registered Ending Power of Attorney, the Attorney themselves could act as Personal Representative on behalf of the Executor in connection with administration of the estate (although they are not obliged to act).

EasySolution

An Attorney in a Lasting Power of Attorney can only act for the benefit of the Donor.

Acting as an Executor for the deceased does not fit this role.

doodling

Hi,

EasySolution said:

An Attorney in a Lasting Power of Attorney can only act for the benefit of the Donor.

Acting as an Executor for the deceased does not fit this role.

You are correct in the general sense.

In this specific case however you may be incorrect.  As the Donor is also the sole beneficiary, it is very much to their benefit that the will is executed.

A discussion of the issues can be found in Whittaker vs. Hancock & Ors [2018] (which had other complexities but the issue of a holder of a PoA acting as executor on behalf of the Donor was considered).

How the OP practically achieves the outcome they are looking for is unclear to me - I suspect a discussion with a STEP qualified solicitor noting the above case might yield a way forward.

George1701

Thank you very much for your replies. As I am a named replacement executor under the predeceased clause anyway, I am inclined to just send in the probate application and see what happens. Whilst a refusal doesn't help anyone, it would clear up the uncertainty about the original question.