Powers of Attorney

From the 1 October 2007 Enduring Powers of Attorney (EPA’s) were replaced by Lasting Powers of Attorney (LPAs) under the Mental Health Act 2005.

Introduction of Lasting Powers of Attorney ("LPA”)

Until 1^st October 2007, it was possible to appoint someone to safeguard your interests and to act on your behalf in respect of your financial affairs by an Enduring Power of Attorney (EPA), which remains valid even after the individual granting the power (the donor) becomes mentally incapable. Following the enactment of the Mental Capacity Act 2005, it is no longer possible to make an EPA. EPA’s made prior to 1 October 2007 will remain valid and be capable of registration as long as the donor is alive.

What is an LPA?

The benefits of drawing up a Will are widely recognised. In doing so, you make provision for the winding up of your affairs after death. This not only has advantages for those who will find themselves administering your estate, but also gives you peace of mind, knowing that you have selected as Executors the individuals best suited for the role and have given them the necessary instructions.

Less well known are the opportunities available to make provision in advance for the possibility of you becoming incapable of managing your own financial and welfare affairs during your lifetime. This becomes increasingly important as the risk of supervening mental incapacity grows through longevity, illness or accident. An ordinary power of attorney is not an effective provision because it is automatically revoked by mental incapacity – just at the time when it is most needed. The Court of Protection has power to appoint people to manage your affairs, but the procedure can be costly and time-consuming. More importantly, you will have lost the right to choose who will have the responsibility for looking after your affairs at a time when it is vital that they are dealt with efficiently and sympathetically.

The better solution is, while mentally capable, to appoint someone to safeguard your interests and to act on your behalf if necessary. You can do this by making a LPA. Under an LPA attorneys can be appointed not only to look after your financial affairs, but also to make decisions on your behalf relating to health and welfare issues. The new type of document is known as a Lasting Power of Attorney (LPA).

Property and Affairs LPA

These are designed for you to appoint attorneys to make a range of decisions including the buying and selling of your house and other assets, dealing with your tax affairs, operating bank and building society accounts and claiming benefits on your behalf.

Personal Welfare LPA

Attorneys appointed under this document can make decisions relating to your living accommodation and care, consenting to or refusing medical treatment on your behalf, and on day to day matters such as diet and dress.

Registration

Both types of LPA’s must be registered with the Office of Public Guardian (OPG) before they can be used by your attorneys.

Your Attorney

As with any power of attorney, care should be taken whom you appoint as they should be trustworthy and have appropriate skills to make the proposed decisions. You can appoint more than one attorney to act together, together and independently, or together in respect of some matters and together and independently in respect of others.

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

If you become mentally incapable it will be necessary for a relative, friend or your solicitor to obtain a deputyship order at the Office of Public Guardian. Once appointed, your Deputy will then have to liaise with the Office of Public Guardian about the management of your affairs. In practice deputyship through the Office of public Guardian can be a drawn out, bureaucratic and ultimately expensive procedure.

Your solicitor’s role

Your solicitor will be involved in the initial process of advising you about LPAs and on the registration process. It may also be appropriate in some cases for your solicitor to be appointed as an attorney, often with a family member or a close friend

Who to contact

For further information and advice about how to set up a Lasting Power of Attorney, please contact us, without obligation, by completing and submitting an online enquiry form.