Lasting Powers of Attorney

Following the inception of the Mental Capacity Act 2005, Lasting Powers of Attorney have replaced Enduring Powers of Attorney as the primary way of choosing a decision maker in the event of loss of mental capacity.

What is a Lasting Power of Attorney?
Under a Power of Attorney a person (the Donor) appoints one or more persons (attorneys) to act on their behalf in relation to their finances, property and affairs and, since the inception of the new Act, also health care and personal welfare. There are two separate formats, one which deals with property and affairs and the other dealing with personal welfare.

A Lasting Power of Attorney (LPA) is so named because the Power will continue to operate (i.e. lasts) even if the Donor subsequently loses mental capacity. Nevertheless, an LPA can also operate whilst a person retains mental capacity.

An LPA can be general and operate in all of the donor’s affairs and property or the donor can place restrictions on it, for instance preventing the Attorney(s) from acting in relation to a particular asset such as the Donor’s house. The Donor can also
include guidance.

To make an LPA, the Donor must be over the age of 18 years and must have the mental capacity.

The new form of LPA also requires a Certificate of Mental Capacity to be given
by an appropriate person. This could be a lay person who has known the Donor for more than two years or it could be a professional person.

A Donor can appoint one or more persons to be their Attorney. Where there is more than one Attorney, the Donor must decide whether they are to act together or separately. Where Attorneys are appointed jointly they must all act together in any decision; where they are appointed jointly and severally, they can act all together
or individually.

There is also a difference between a Lasting Power of Attorney relating to property and affairs and one which deals with personal welfare in that either an individual or a trust corporation can be appointed as Attorney in an LPA relating to property and affairs but only an individual can be appointed where the LPA relates to personal welfare. Different Attorneys may be chosen to act in respect of welfare and property and financial matters.

Like the old Enduring Powers of Attorney, Lasting Powers of Attorney can be used as “normal” Powers of Attorney whilst the Donor has full mental capacity but, unlike Enduring Powers of Attorney, they cannot be used at all until they have been registered with the Office of the Public Guardian

No Lasting Power of Attorney can be used without first being registered by the Office of the Public Guardian.

Enduring Power of Attorney
Enduring Powers of Attorney created before the inception of the Mental Capacity Act 2005 on the 1 st October 2007 are valid even if they have not yet been put into use. The pre-requisite is that they are dated prior to the 1 st October 2007. The old Rules still apply to EPA’s. An EPA can be used without having been registered but the Attorneys are under an obligation to seek registration of the EPA if they have reason to believe that the Donor has become or is becoming incapable of dealing with his or her affairs.

This information is only a brief overview of Powers of Attorney. For full information and advice, please contact Brown & Company Solicitors.