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One executor may lack capacity

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  • One executor may lack capacity

    May I ask what should happen when one of two executors of a Will may have lost capacity (they have a diagnosis of dementia and imo they lack capacity).
    The executor in question has an LPA, so I asked the attorneys to register their position with the bank where the executors’ bank accounts are held (I am the other executor) - since I assume the two attorneys would be able to act on behalf of the donor in the capacity of joint executor??
    However, after asking several times, nothing is happening.
    Do I put the attorneys on notice?
    Tags: None

  • #2
    You could contact the Probate Court and explain the position and ask that the executor who is unable to act is removed and apply to act alone. This is not an unusual case and often the person with LPA would ask the court that you alone act, or an additional executor is appointed in place of.

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    • #3
      You may need to take professional advice on this but I don't think your assumption is correct about the powers of the attorneys. LPA gives authority to the attorneys to act with regard to the financial affairs of the donor (the other executor). It doesn't authorise them to step in and take over the donor's role in relation to other people's financial affairs, which I think is what you are trying to do.

      If one of the executors appointed by the deceased is no longer able to act because of mental capacity you need to take steps to remove them as mal161 has advised.
      All opinions expressed are based on my personal experience. I am not a lawyer and do not hold any legal qualifications.

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