Enduring Powers of Attorneys and Lasting Powers of Attorney
Enduring Powers of Attorney and Lasting Powers of Attorney
Under the Mental Capacity Act 2005 (which came into force in October 2007), Lasting Powers of Attorney replaced Enduring Powers of Attorney as the primary way of choosing a decision-maker to act in the event of loss of mental capacity.
You are no longer able to make an Enduring Power of Attorney. Instead you will have to follow a new more expensive procedure to make a Lasting Power of Attorney.
Enduring Powers of Attorney that were made before
October 2007 are still valid
What is an Enduring Power of Attorney?
Under an Enduring Power of Attorney a person (the Donor) appointed one or more persons (Attorneys) to act on their behalf in relation to their finances, property and affairs. The document could not give the Attorneys power in relation to decisions about lifestyle, personal welfare or healthcare. An Enduring Power of Attorney (EPA) is so-named because the power continues to operate (i.e. endures) even if the Donor subsequently loses mental capacity. Nevertheless, an EPA can also operate whilst a person retains mental capacity. An EPA can be general and operate in relation to all of the Donor's affairs and property or the Donor could place restrictions on it, for instance, preventing the Attorney(s) from acting in relation to a particular asset such as the Donor's house.
A Donor could appoint one or more persons to be their Attorney. Where there is more than one Attorney, the Donor had to decide whether they were to act jointly or jointly and severally. Where Attorneys were appointed jointly they must all act together in any decision; where they are appointed jointly and severally, they can act all together or individually.
How does the new Mental Capacity Act affect Enduring Powers of Attorney?
This legislation replaced the existing scheme of Enduring Powers of Attorney with Lasting Powers of Attorney (LPAs). However, EPAs made prior to the commencement of this legislation remain valid whether they have already been registered with the Court of Protection or not and if they have not been registered as the Donor is still capable they can still be registered as EPA's if the Donor becomes incapable.
How does a Lasting Power of Attorney differ from an Enduring Power of Attorney?
Unlike an EPA, LPAs can extend to personal welfare matters, including healthcare, as well as to property and affairs. Examples of personal welfare matters are medical treatment and accommodation.
There are, however, restrictions on the Attorney(s) powers in relation to medical treatment. There are therefore two separate forms of LPA, one for personal welfare and one for property and affairs.
Where the LPA relates only to property and affairs, the Attorney can be either an individual or a trust corporation. However, if the LPA relates to personal welfare, only an individual can be appointed as an Attorney. Different Attorneys may be chosen to act in respect of welfare and property and financial matters.
LPAs include authority to make decisions when the Donor no longer has capacity to make those decisions on his or her own. However, an LPA can also act as a ‘normal' power of attorney whilst the Donor has full mental capacity, provided it has been registered.
LPAs cannot be used without first being registered at the Office of the Public Guardian. This contrasts with the situation in respect of EPAs, which only require registration when the Attorney(s) believe the Donor is or is becoming mentally incapable.
Whereas the Donor's signature on an EPA and an LPA must be witnessed, an LPA must also be "Certified" under the LPA scheme. The certifier must confirm that, in his opinion, the Donor understands the purpose and scope of the document they are signing. A "Certificate Provider" can be a Professional or other qualified person, or simply someone that has known the Donor for at least two years.
A Lasting Power of Attorney is more expensive than an Enduring Power of Attorney. The reason for the increase in cost is that it must be registered with the Public Guardianship Office before it can be used. The new form is also considerably more comprehensive than the current Enduring Power of Attorney and the whole cost in terms of legal time and fees are therefore higher.
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