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Powers of Attorney

A power of attorney is a legal document where a person gives another person or persons (the attorney) authority to make certain decisions on his or her behalf.

With effect from lst October 2007 relevant sections of The Mental Capacity Act 2005 came into force affecting the ability to make an Enduring Power of Attorney (“EPA”).     It is no longer possible with effect from that date to make a new EPA and in its place a Lasting Power of Attorney (LPA) has been introduced.   

Types of LPAs

There are two types of LPAs-:

-A property and affairs LPA, which allows your attorney authority to deal with your property and finances as you specify

-A welfare LPA, which allows your attorney to make welfare and healthcare decisions on your behalf, only when you lack mental capacity to do so yourself. This could also extend, if you wish, to giving or refusing consent to the continuation of life sustaining treatment  

Your Attorney

As with any power of attorney, it is an important document and you should take care whom you appoint as they should be trustworthy and have appropriate skills to make the proposed decisions. If you appoint more than one attorney, you can appoint them to always act together (jointly) or together or separately (jointly and severally). You may even appoint them to act jointly for some things and jointly and severally for others, although this should only be done with advice, as it may cause problems when using the power. 

You may also choose to appoint a successor to your attorney, in case they die or otherwise cannot act for you.

When can the Attorney act?

The attorney will only be able to act when the LPA has been signed by you and your attorney, certified by a person that you understand the nature and scope of the LPA and have not been unduly pressured into making the power. The certificate will also need to confirm there has not been any fraud or another reason why you cannot make the power. It must then be registered with the Office of Public Guardian before it can be used. The financial LPA can be used both when you have capacity to act, as well as if you lack mental capacity to make a welfare or medical decision.

What happens if you have not made a LPA or EPA?

If you lack capacity to make a financial decision, then it may be necessary for an application to be made to the Court of Protection for an appropriate order, such as appointing another person to make decisions on your behalf. This is both costly and time consuming.

Most care and treatment decisions can be made on your behalf without the need for a court application. However, if you wish to avoid potential disputes, you can give a person(s) authority to make those decisions on your behalf by making a welfare LPA.

What happens to Enduring Powers of Attorney after lst October 2007?

Any EPA made before lst October 2007 will remain valid and in force after that date unless cancelled by the person who made the EPA or the Court of Protection.   

What are the differences between an EPA and an LPA?

 

  • An EPA provides the Attorney with power to deal only with the property and financial affairs of the Donor;
  • An LPA not only allows the Attorney to deal with the property and financial affairs of the Donor but also makes provision for the Attorney to make decisions about the giving and refusing of consent to medical treatment on behalf of the Donor.   
  • The cost of an LPA will be significantly greater than the cost of an EPA as more detail is needed including the requirement for a Certificate from an independent person that the Donor making the LPA does so voluntarily and understands what he/she is doing.    

One of the more contentious aspects of the LPA procedure is that although the document must be registered before it can be used there is no point at which the Attorney has to declare that the Donor has lost mental capacity and therefore the Donor will always be able to access his/her funds even when he/she may be incapable of managing those finances.     Under the pre-existing law covering EPAs if the Donor lost mental capacity the EPA had to be registered by the Attorney with the Public Guardianship Office and at which stage the Donor no longer had the ability to access his/her funds and the Attorney had full control over the Donor’s financial affairs.

Please contact us for further information.