If you have been acting as someone’s attorney and that person has now died, the lasting power of attorney ended at the moment of death. Everything it used to cover passed to the executors named in the will, or where there is no will, to whoever is entitled to apply to be the administrator, and in most cases a bank will release nothing until a grant has been issued.
I say this to families most weeks, and the usual reply is that it cannot possibly end that abruptly when the house, the account and the monthly bills are all where they were the day before.
Why the authority ends at the moment of death
Because it was only ever authority over a living person’s affairs, and that is written into the definition. Section 9 of the Mental Capacity Act 2005 says a lasting power of attorney is a power under which the donor confers on the attorney authority to make decisions about the donor’s personal welfare and property and affairs, and which includes authority to make those decisions in circumstances where the donor no longer has capacity. Capacity loss is a circumstance the power is written to carry through, which is the part people read backwards. Death is not a circumstance it was ever written to carry through.
GOV.UK puts the consequence in one line on its page about ending a lasting power of attorney: your LPA will end automatically when you die, and your affairs will be looked after by your executors or personal representatives from that point, not your attorney. There is no notice period and nothing to sign, and both types go together. A health and welfare LPA ends because there are no more health or welfare decisions to make. A property and financial affairs LPA ends even though the property and the money are still there, because what is left has stopped being the donor’s property and has become an estate, with its own rules about who may touch it.
Which raises the obvious question of who may touch it now.
Who holds the authority once the LPA ends
One of two people, and which one depends entirely on whether there is a valid will.
If there is a will, the executors named in it take over. An executor’s authority comes from the will itself and runs from the date of death, which is why an executor can start work at once: gathering paperwork, notifying institutions, dealing with the funeral. The grant of probate confirms that authority rather than creating it.
If there is no will, nobody has authority yet. The closest living relative applies to become the administrator, and their authority does not exist until the grant of letters of administration is issued. GOV.UK has a tool for working out who is entitled to apply and in what order, which is not always the order the family assumes.
Either way, the person now in charge is called the personal representative, and being the attorney gives you no claim on that job. Where the same person is both attorney and executor, say which of the two you are acting under from the date of death, because the bank will ask.
What the bank does once it is told
It freezes the account. Cards are stopped, standing orders and direct debits going out of it are cancelled, and the balance sits where it is until somebody produces the authority to claim it. If you were a signatory under the LPA, that access goes at the same time, and the bank is entitled to ask for money back if anything left the account after the date of death.
Two things are exceptions. Many banks will pay the funeral director’s invoice directly from the account before any grant is issued, under their bereavement process, so ask rather than paying it yourself and hoping to be reimbursed. And a joint account normally passes to the surviving holder by survivorship and is not frozen, although the deceased’s share still counts towards the estate for inheritance tax.
None of that changes what you personally have to do, which is the part attorneys most often get wrong in the first fortnight.
What you must stop, and what you must hand over
Stop acting, from the date of death. No further payments, transfers or decisions, however sensible and however obviously the donor would have wanted them. If a direct debit you set up as attorney is still running, tell the bank and the personal representative rather than cancelling it yourself.
Deal with the document. Tell the Office of the Public Guardian, on 0300 456 0300 or at PO Box 16185, Birmingham, B2 2WH. My own practice is to send the original and every certified copy back, so none is left sitting in a bank’s file for somebody to act on later. A plain photocopy the family keeps with their records does no harm.
Account for what you did. Hand the personal representative your running record: statements, receipts, the file of bills paid, anything you drew as expenses. If you kept it as you went along this takes an afternoon. Hand over the assets too: keys, deeds, share certificates, and anything in an account you opened as attorney.
The estate is then theirs to deal with, and their first question is almost always the same one.
When a grant becomes the only way through
When the institution holding the money says so. GOV.UK is explicit on applying for probate that every organisation sets its own rules on whether it needs to see the grant, so each one has to be asked separately, and two banks holding similar sums can give you two different answers.
There are cases where it is unavoidable. Property in the deceased’s sole name cannot be sold or transferred without it, shares held in their own name need it, and every bank sets its own threshold, so an estate comfortably under one bank’s limit can sit above another’s. There are also estates where it is never needed, usually where everything was held jointly with someone who has survived them.
Where inheritance tax is due, the tax side comes first: the value of the estate goes to HMRC on form IHT400 before the probate application, which is the reverse of the order most families expect. In my experience, families who go for the grant first end up waiting on the tax anyway.
An LPA can also end while the donor is alive
Section 13 of the Mental Capacity Act 2005 covers the other endings: a donor with capacity may revoke the power at any time, the donor’s own bankruptcy revokes the property and affairs side of it, and the power falls away where the attorney disclaims, dies, loses capacity, goes bankrupt, or was married to the donor and that marriage has since been dissolved. A replacement attorney can save several of those, and I deal with the detail in the lasting power of attorney FAQ.
A donor who still has capacity can put a fresh LPA in place. A donor who has died cannot, which brings us back to the work that has to be done instead.
What the estate work involves
Somebody has to do the job the power of attorney used to cover:
- Registering the death and notifying the institutions
- Valuing every asset and every debt as at the date of death
- Working out whether inheritance tax is due, reporting it to HMRC and arranging payment
- Applying for the grant
- Collecting in the money and settling the liabilities
- Preparing estate accounts and distributing what is left to the people entitled to it
That is the work I do. I handle full estate administration for a fixed fee of £1,880, covering the valuation, the tax, the forms, the grant and the distribution, with no hourly billing and no percentage of the estate, and you deal with me rather than a call centre.
If you were the attorney and are now holding paperwork you are not sure you may touch, that is an ordinary place to start from. Call me on 020 8669 1779. The call is free and there is no obligation.
Left holding paperwork after a death?
Leave your details and Ade will call to go through where the authority sits now and what the estate needs next.
Frequently asked questions
Can the same person be both attorney and executor?
Yes, and it is a sensible arrangement. The two roles never overlap in time, because the LPA ends at the moment the executor’s job begins. From the date of death you are acting under the will and not under the LPA, and you should say so to every institution you contact. The LPA still needs to be dealt with and the Office of the Public Guardian still needs to be told, even though you are the one carrying on.
Does an enduring power of attorney (EPA) also end at death?
Yes. Only EPAs made and signed before 1 October 2007 can still be used, and GOV.UK is plain that an EPA will end if the donor cancels it or they die. If the EPA was registered, tell the Office of the Public Guardian that the donor has died. Whoever holds it should treat the position as identical to an LPA: stop acting, hand the paperwork to the personal representative, and wait for the grant.