Enduring Power of Attorney and Lasting Powers of Attorney
Those whose mental faculties are failing require help in the management of their affairs from someone who they can trust and is willing to take responsibility for managing that person’s legal, financial and health interests
Until 2007 the authority for managing the affairs of someone whose mental faculties were failing was granted by an Enduring Power of Attorney. The Mental Capacity Act 2005 enabled people to entrust the management of their finances and assets to another in the event that they should become unable to do so themselves, as well as health and welfare decisions, through a Lasting Power of Attorney (LPA). which replaced Enduring Powers of Attorney (EPAs) in 2007, when the Mental Capacity Act came into force.
Enduring Power of Attorney
Prior to October 2007, it was possible to grant an EPA to a trusted person to manage their finances. Should they become incapable of doing so.
It is important to know that EPA’s remain effective whether or not they have been registered at the Court of Protection, provided that both the donor (the person granting the power of attorney) of the Power and the attorney/s (the person or person accepting the grant) signed the document prior to 1 October 2007.
An EPA may be used, with the consent of the Donor, whilst the Donor still has mental capacity,. Attorneys must register the EPA with the Office of the Public Guardian (OPG)… If the Donor appears to be losing the mental capacity to manage his or her finances, Once application for registration has been made attorneys may use their Donor’s resources to buy basic items such as paying for food or payment of regular bills. They may carry out more substantial transactions, such as selling a house until the EPA has been registered.
Lasting Powers of Attorney (LPA’s)
LPA’s replaced EPA’s in October 2007
There are two forms of Lasting Power of attorney.
Property and affairs LPA
A property and affairs LPA enables a Donor to entrust someone (the attorney) to make decisions in relation to the Donor’s property and affairs when the Donor no longer has the mental ability to take such decisions himself. This could involve paying bills, collecting income and benefits or even selling your house. It can only be used when it has been registered at the Office of the Public Guardian (OPG).
Personal welfare LPA
A Personal Welfare Order permits an attorney to make decisions on behalf of the Donor concerning personal welfare or circumstances such as residency. It can authorize the attorney to give or refuse consent to medical treatment but only where that power is expressly given in the LPA. A personal welfare LPA can only be used when it has been registered at the OPG and the Donor has become mentally incapable of making decisions about his own welfare.
Who can make an LPA?
Anyone aged 18 or over with the capacity to do so can make an LPA appointing one or more attorneys to make decisions on their behalf.
Who can act as attorney?
anyone over 18 and not bankrupt when they the form is signed. More than one person may act. Attorneys may be replaced whilst the Donor has mental capacity If more than one person is appointed the Donor may choose whether they should act together or independently.
Your attorneys must follow the principles set out in the Mental Capacity Act sets out the principles which govern the conduct of Attorneys when they are making decisions or acting on the Donor’s behalf. Attorneys must always act in the best interest of the donor. To the extent that the Donor is capable of so doing, attorneys should take all practical and appropriate steps to help the donor make a particular decision.
How to make an LPA
There are different forms for making a property and affairs LPA and a personal welfare LPA. Forms and explanatory leaflets can be obtained from the OPG.
Before the LPA can become valid a certificate of capacity drawn up by an independent third party called a Certificate Provider is required. The Certificate Provider could be a solicitor doctor or any independent person you have known for at least two years. Relatives of your attorney cannot be a Certificate Provider. The prescribed form must be completed and signed in the presence of a witness. Each attorney must also sign to confirm they have read the explanatory information and understand the duties they are undertaking.
Donors should list a person or persons to be notified of any application to register the LPA. If none are listed then an additional certificate of capacity must be provided.
The form must be registered with the OPG before it being used. There is a fee for registering each LPA, In certain circumstances you may be able to avoid the registration fees. The OPG will advise
Do I need a solicitor?
You do not but an LPA is an important document, the forms are lengthy and quite complicated so Donors may be wise to seek guidance from a solicitor familiar with the process .