Powers of attorney
Lasting Powers of Attorney (LPAs) were introduced by the Mental Capacity Act 2005.
LPAs replaced Enduring Powers of Attorney (EPAs) which, since 1st October, 2007 can no longer be given. However, EPAs given before that date are still valid and can still be used and registered.
Lasting powers of attorney
LPAs are for adults who lack the capacity to make decisions for themselves or who have the capacity currently and wish to make provision for a time when they may lack capacity in the future.
Enduring powers of attorney
An EPA gives an attorney powers to deal with the property and financial affairs of people who no longer have the mental capacity to do it themselves, typically because of old age.
It does not automatically grant a power to deal with personal welfare but in most cases an EPA attorney will be considered to be the appropriate person.
The Office of the Public Guardian is responsible for maintaining a register of EPAs which can be searched by anyone for a fee.
Two types of lasting powers of attorney
There are two types of lasting power of attorney. Both types have to be registered with the Office of the Public Guardian before use.
Lasting power of attorney relating to finance and property matters
The first relates to property and business and financial matters. You as the donor, giving the power appoints an attorney or attorneys to deal with your finance and property.
The form is 25 pages long and detailed. You will need to assemble all your personal financial information before completing it. This is a good reason for completing the document in tandem with making a will.
Lasting power of attorney relating to personal welfare
The second relates to personal welfare and allows you to appoint an attorney or attorneys who will make decisions relating to your health and personal welfare.
This will include medical treatment, decisions about where you should live and whether consent should be given or withheld for treatment.
Completing the lasting power of attorney
Both are divided into three parts: Part A is the Donor’s Statement, Part B is the Certificate Provider’s Statement and Part C is the Attorney’s Statement.
Part A: The donor’s statement
This sets out your personal details.
Part B: The certificate provider’s statement
This must be completed by an independent third party after they have discussed the contents of the LPA with you, if possible, without anyone else present.
They must confirm that in their opinion you understand the purpose and extent of the LPA and that there is nothing to prevent the LPA being created, including undue pressure or fraud from a third party.
It is advisable to ask your GP to complete Part B if there is any possibility that your capacity could be challenged.
Part C: The attorney’s statement
This is completed by the attorney stating that he or she understands the duties and obligations.
You should be aware that once the LPA has been registered, all the information in the forms, including bank details, will be in the public domain.
The forms are complicated and if errors are made your wishes may not be reflected if you become incapacitated. Although it is not a requirement, we recommend that you take professional advice if you want to make an LPA.
The information which we provide through Lasting Post is in outline for information or educational purposes only. The information is not a substitute for the professional judgment of a solicitor, accountant or other professional adviser. We cannot guarantee that information provided by Lasting Post will meet your individual needs, as this will very much depend on your individual circumstances. You should therefore use the information only as a starting point for your enquiries.