The Mental Capacity Act 2005 has been fully implemented in England and Wales from 1 October 2007. The Act introduces a number of changes in the way:
people can plan ahead for a time when they may not have mental capacity
decisions are made on behalf of people who lack mental capacity
One of these changes is that from 1 October 2007 Enduring Powers of Attorney (EPA) can no longer be made. Instead, they will be replaced with a revised type of power called a Lasting Power of Attorney (LPA).
Since October 2007, you will no longer be able to make an Enduring Power of Attorney. The Enduring Power of Attorney allows the nominated person (the Attorney) to act only in relation to financial affairs and property. It can start immediately, even if you are mentally capable, or in the future, if you become mentally incapable.
The Lasting Power of Attorney is more comprehensive than a Enduring Power of Attorney and allows the person who is giving away responsibility (the Donor) to choose someone to not only manage their financial affairs and property but also to make decisions concerning their health and welfare.
The Lasting Power of Attorney will allow the Donor to nominate different Attorneys to be responsible for different decisions. One Attorney could be responsible for your finances whilst another Attorney could look after your medical treatment and welfare.
An LPA will, like an EPA, allow a donor to nominate one or more attorneys to make decisions should they lose the mental capacity to do so themselves. The donor will be able to make two types of LPA :
Property and affairs, similar to an EPA.
Personal welfare, which can include provisions for giving or refusing consent to medical treatment in circumstances where the donor has lost the capacity to make such decisions themselves.
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 two forms to complete: 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/her own. However, an LPA can also act as 'normal' power of attorney whilst the donor has full mental capacity, provided it has been registered.
LPAs cannot be used without first being registered by 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. When this happens, the attorney has a duty to register the EPA with the Court of Protection.
Whereas the donor's signature on an EPA must be witnessed, this has now been replaced with 'certification' 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.
Pindoria Solicitors can guide you with the LPA and act as a professional Certificate Provider.
Certificate Providers
