Mental Capacity and Lasting Powers of Attorney
No-one likes to think that one day they may not be able to manage their own financial affairs. However, should it be necessary for someone to assist you, a valid Lasting Power of Attorney (also known as an ‘LPA’) will enable you to choose who will act for you and outline what restrictions, if any, apply to their powers.
What is a Lasting Power of Attorney?
A Lasting Power of Attorney (‘LPA’) is a document that enables a person to appoint one or more individuals (known as ‘Attorneys’) to act in relation to their Personal Welfare and/or Property and Financial Affairs once mental capacity to do so oneself has been lost.
The LPA replaced the previous Enduring Power of Attorney (‘EPA’) under the provisions of the Mental Capacity Act 2005. The LPA is now the only way in which to give another person the power to act as your attorney once mental capacity has been lost. There are 2 types of LPA – one for Personal Welfare and one for Property and Affairs.
Your Attorney is only able to utilise the powers given to them by the LPA if the document has been properly registered and you are incapable of making the decision yourself.
The Personal Welfare LPA allows you to appoint an Attorney to make any or all of your healthcare and personal welfare decisions (which includes decisions about your diet, dress and daily routines). Within the Personal Welfare LPA, you are able to state whether your nominated Attorney is to be given the authority to make ‘life-sustaining decisions’ on your behalf, this is a power which must be expressly given. There is space to insert an advance statement and/or an advance decision relating to any specific refusal of medical treatment. The Personal Welfare LPA thus absolves the previous need for a living will because, once the mental capacity to make decisions in relation to personal welfare is lost and the powers of the attorney invoked, the attorney must take the advance statement into consideration when making decisions on your behalf (which equates to the extent any statement contained in a living will may also be considered).
The Property and Financial Affairs LPA allows the nominated Attorneys to manage all of your financial affairs, when you become mentally incapable of doing so yourself.
The Personal Welfare and Property and Financial Affairs LPAs are two entirely separate documents. If you wish to appoint Attorneys to act in both instances then you must complete and register both types of LPA document. You may choose to appoint the same Attorneys in each document or entirely different Attorneys to take responsibility for the different powers.
In order for an LPA to be effective, it must be registered with the Court of Protection. Details of the LPA are then held on a register administered by the Office of the Public Guardian. An unregistered LPA does not give an Attorney any power to make decisions. The LPA may be registered at any time whilst you have the mental capacity to do so. If you wish to have an LPA governing both your Property and Affairs and Personal Welfare then both LPA forms must be completed and registered with the Court, and two fees for doing so become payable. The fee for registering each LPA is currently £120, although there are some exemptions and remissions available.
If you have already made an EPA under the old rules, how will the new rules on LPAs under the Mental Capacity Act 2005 affect you?
You cannot now make a new EPA, or make any changes to an EPA which is already in existence. However, all EPA’s which were made prior to 1st October 2007, when the new rules were brought into effect, can still be used and relied upon in their current form. Any unregistered EPA, may still be registered by an Attorney if he believes the Donor is or is becoming mentally incapable. Additionally, you can make an additional LPA to run alongside your EPA – for instance an EPA can only deal with your Property and Financial Affairs so if you also wish to appoint an Attorney to handle any Personal Welfare issues you would need to do so by way of a Personal Welfare LPA.
If your EPA is unregistered, you may wish to replace it with an LPA, as unregistered EPA’s can be revoked at anytime whilst you have the capacity to do so. Revocation should be done by way of an express Deed. However, if the EPA has already been registered then it cannot be revoked without the permission of the Court of Protection.
