Q&As

Can an attorney appointed by lasting power of attorney (LPA) take on the role of an executor where the donor has been appointed as an executor but has lost capacity?

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Published on LexisPSL on 13/01/2016

The following Private Client Q&A provides comprehensive and up to date legal information covering:

  • Can an attorney appointed by lasting power of attorney (LPA) take on the role of an executor where the donor has been appointed as an executor but has lost capacity?
  • Executor lacks capacity before obtaining the grant
  • Executor loses capacity after obtaining the grant
  • Procedure

Executor lacks capacity before obtaining the grant

In the case of mental incapacity of the person entitled to apply for a grant, where there is no person authorised by the Court of Protection to apply for the grant, the grant may be made to the lawful attorney of the person lacking mental capacity acting under a registered EPA or LPA.

The LPA must give the donee powers to deal with the property and affairs (which include finance) of the donor. A power limited to making decisions about the donor's personal affairs, or that does not include specific power to obtain a grant or general power to deal with property and affairs, is not acceptable to allow the attorney to extract a grant for the use and benefit

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