Change in the law but no need for panic says Kent Lawyer

21 December 2007

A big change in the law governing powers of attorney means that new legislation is quite complex – but there’s no need to panic, says Kent lawyer Nicola Rostron.
Nicola, associate and senior solicitor in the private client team at leading south east law firm Furley Page, comments: “Since October 2007 the Mental Capacity Act has had a major impact on powers of attorney, introducing a new lasting power of attorney known as LPA to replace the existing enduring powers of attorney – EPA.

“Any properly prepared EPA made before October 2007 is valid but you will no longer be able to make a new EPA. General powers of attorney remain unchanged.”
Basically, there are two types of lasting powers of attorney that can be made by a person who is then known as a ‘donor’. The first deals with property and affairs and gives the attorney authority to act in connection with the donor’s financial matters. The second relates to personal welfare embracing issues such as health, medical treatment, where to live, what to wear, what to eat, who to see - but the attorney can only make decisions if the donor has lost capacity.

Although LPAs are much lengthier than EPAs, a major advantage is that once registered (the attorney can’t act until they are), the donor is still able to conduct their own affairs – either with the attorney or independently.

Nicola points out that both types of LPAs require an independent certificate provider to confirm the donor understands the nature and effect of the LPA and also doesn’t feel unduly pressured to make it. The certificate provider must be someone of the donor’s choice and be over 18. Certain restrictions apply.

Finally, attorneys should be trustworthy, over 18 and not an undischarged or interim bankrupt. A donor can appoint more than one and in the event of an attorney’s death - or him or her becoming incapable of acting on a donor’s behalf - the donor can appoint a replacement.

For more information contact Nicola Rostron.

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