LPA - Replacement Attorneys and Capacity

AdamW85

Good Evening,

I hope this thread is in the correct location.  I have done a search both on here and on Google, and not really got a satisfactory answer.

I am looking to set up a LPA with my partner (unmarried, 2 children, together for 16 years) but we are unsure of the technicalities around capacity, who judges it, and what the implications could be if there is a falling out post the incapacity of the donor.  For reference my partners family are all overseas and speak little to no English.

My proposal is the following:

Donor: Me
Attorney: Partner
Replacement Attorney: My Father

Donor: Partner
Attorney: Me
Replacement Attorney: My Father

In the case of my LPA, the question posed by my partner is:

"what in the event that you lose capacity, and there is a falling out or disagreement between me and your father, he could claim I have lost capacity and take over as attorney, potentially taking all power away from me"

It's worth saying they have a very good relationship now, but who knows what happens in the future, especially in times of trouble.

So I think her question/concern is valid.

I just don't know the answer to that, and cannot find a satisfactory answer online either.

The alternative is to not have a replacement attorney, but I don't think this is a wise decision.

Any one able to offer any insights/advice on this please?  

elsien

I would not have a replacement attorney who is so much older. On a purely practical level, the chances are that they will become ill or lose capacity and be unable to act long before you or your partner do. 

It is always possible that there will be a falling out with the attorney whoever the attorney is. 

In the event of a dispute your partner could simply revoke the power of attorney, and there was a dispute around capacity, it would ultimately end up with the OPG to resolve. 

Are these powers of attorney for finances or health or welfare or both?
It does need to be someone that your partner trusts - If she is unsure, then maybe she needs to not have a replacement attorney, and then redo the LPA later once your children are older and able to take on the role. 

ETA - I’m not sure what the issue is with the death of the donor because the LPA ceases to be effective at that point anyway? 

Keep_pedalling

For now I would just have each other as attorneys  and make new ones when your children are old enough.

On a separate point have you got wills in place yet? if not that should be another priority. Have you considered that you marital status could require IHT to be an issue on the first death because of the lack of spousal exemption. 

AdamW85

Thanks for the replies.  

I do agree ref your point on my father being older, and therefore likely to lose capacity before.  I was only trying to protect against the situation (albeit very extreme) that both my partner and I lose capacity at the same time.  But on reflection, maybe you are right and better to not have a replacement until the children are old enough.

Ref Will, yes we have those in place.