Lasting Power of Attorney

The Lasting Power of Attorney (otherwise known as LPA) was introduced on the 1st October 2007. It is a very important legal document that allows you to appoint someone to deal with your affairs should you be unable to do so. Sadly, incapacity can strike at any time, whether it be a stroke or accident, old age, illness etc. Circumstances can change very quickly and it is critical to do the LPA when you have the mental capacity to understand the legal process. In order to use the LPA, it must be registered with the Office of the Public Guardian, which can take six weeks (or even longer). This is why it is so important to register them as soon as possible.

The Lasting Power of Attorney can be used to provide stability for your family when you are out of action for whatever reason. For example, if there was a terrible accident and the main breadwinner in the family was incapacitated for a long period of time the spouse would have to apply to the Court of Protection to access that person’s bank account. This can be time consuming and a very long-winded process during an already difficult and upsetting time.

Making an LPA gives you peace of mind that a close relative or person you trust will represent you and carry out your wishes should you be unable to do so.

There are two types of powers:

• A health and welfare allows the person you nominate to deal with your affairs to make decisions relating to the use or refusal of treatment, along with the general health and welfare of the Donor
• A property and financial affairs allows the person you nominate to deal with your affairs to make decisions relating to the financial well-being of you, such as bank accounts, payment of bills, sale of property etc.

The new LPAs are much longer documents than the old Enduring Powers of Attorney. This is because the person giving the power (‘the Donor’) has far greater choices, for example:

• the Donor can appoint a replacement attorney to act if an original attorney can no longer do so;
• restrictions and conditions can be placed on the attorney
• the Donor is able to give guidance to his attorney about matters he would wish considered when decisions are made
• the Donor can nominate who they would like to be notified of registration of the LPA

Another major difference with the new LPAs is that there is a requirement for a Certificate Provider. This is a person who has to certify that the Donor understands the purpose of the LPA, the extent of the authority they are giving to the attorney and that the Donor is not being influenced or pressurised into giving the Lasting Power of Attorney.

Certificate Providers are people who have either known the Donor personally for a minimum period of 2 years, or someone chosen by the Donor who has the relevant professional skills and expertise to certify the LPA, e.g. a solicitor or a doctor.

Attorneys under Lasting Power of Attorneys are under an obligation to act in accordance with the principles of the Mental Capacity Act 2005 and to have regard to the Act’s Code of Practice. The objective of the new legislation is to be supportive and enabling, so that attorneys should always try to encourage their Donor to make and/or participate in decision-making whenever possible.

The Office of the Public Guardian (OPG) has prepared guides that are essential reading for people considering making an LPA and for their proposed attorneys. Due to the length and greater complexity of LPAs, they are inevitably more expensive to prepare than Enduring Power of Attorney (EPAs).

The new legislation means that the previous type of power of attorney EPA can no longer be created. However, existing EPAs, ie those granted before 1st October 2007, will continue to be effective.

However, unlike EPAs, Lasting Powers of Attorney must be registered with the OPG before an attorney has power to act and there is a Court fee payable for the registration.