Law Update Powers Of Attorney

19 November 2007

The Mental Capacity Act 2005 (MCA) has had a major impact on Powers of Attorney since 1st October 2007. The Act introduces a new Lasting Power of Attorney to replace Enduring Powers of Attorney (EPA). Any properly prepared EPA made before that date will continue to be valid but you will no longer be able to make a new EPA. The Law concerning General Powers of Attorney has not changed.

General Powers of Attorney

By creating a General Power of Attorney (GPA), a person (the Donor) gives authority to someone else (the Attorney) to act on their behalf and manage their affairs. The Power might be limited to some specific matter, for example to sell property, or the Attorney can be given wide powers over the Donor’s affairs generally.

A General Power of Attorney cannot, though, cover loss of mental incapacity by the Donor, and if the Donor becomes mentally incapable then the Attorney can no longer act.

Enduring Powers of Attorney

An EPA will need to be registered with the Court of Protection by the attorney if the Donor “is becoming or has become mentally incapable of managing their own affairs”. Until an EPA is registered the Donor can revoke the Power at any time. There is a specific procedure for registration which must be followed and this includes the giving of notice to both the Donor and certain specified relatives. An EPA is limited in that an Attorney can only have authority to manage the Donor’s property and affairs.

Lasting Powers of Attorney

There are two types of Lasting Powers of Attorney (LPA) that can be made by a Donor. The first deals with Property and Affairs and gives the Attorney authority to act in much the same way as an EPA. The second type of LPA relates to Personal Welfare. In this document the Donor gives the Attorney authority to make decisions about their personal welfare. This will allow the Attorney to make health and welfare decisions on behalf of the Donor but only if the Donor has lost capacity. A Code of Practice which accompanies the MCA gives examples of what is meant by personal welfare. LPA’s are lengthier than EPAs and require careful study in advance of being made. An LPA must be registered with the Office of the Public Guardian before the Attorney can act.

When preparing either type of LPA an independent Certificate Provider will also be required to confirm the Donor understands the nature and effect of the LPA and has not been unduly pressured to make it.

A Certificate Provider can give the certificate based upon his skills or knowledge of the Donor. A Certificate Provider must be someone of the Donor’s choice and be over 18 years of age. There are restrictions as to who may be a Certificate Provider. As your Solicitors involved in the drawing up of an LPA we can advise you fully on the appropriateness of your Certificate Provider.

Choosing an Attorney

The Donor should choose someone they can trust. The Attorney must be over 18 and must not be an undischarged or interim bankrupt. One or more Attorneys may be appointed. They must agree to be your Attorney and sign an LPA, but Attorneys do not have to sign a GPA. Attorneys appointed under an LPA must act according to the principles laid down in the MCA and always in the Donor’s best interest.

Attorneys can be appointed to work together or together and independently or together in respect of some matters and together or independently in respect of others.

It is possible under an LPA (but not under a GPA) to appoint replacement Attorneys should the original Attorney die or become incapable of acting.

For more information please contact Nicola Rostron, Associate.

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