The Lasting Power Of Attorney - A Simple Guide

Prior to October 2007, to manage someone else's affairs

, a person needed to apply for an Enduring Power of Attorney ('EPA'). However, the Mental Capacity Act 2005, which came into force in October 2007, changed the laws surrounding powers of attorney and replaced the EPA with a Lasting Power of Attorney ('LPA').

An Enduring Power of Attorney was a right conferred by a mentally capable person that was registerable in the event that person became mentally incapable. If multiple people are needed to deal with different aspects of a person's financial affairs, then an EPA can be granted to more than one person. The EPA, however, would only allow the holder to deal with a person's finances.

A Lasting Power of Attorney can be set up (as above with a EPA) whilst a person has a sufficient mental capacity, it then becomes exercisable when that person is no longer mentally capable. Powers under a LPA extend further than that of the EPA, allowing the nominee to manage a person's care, treatment, welfare and financial arrangements. A LPA only becomes valid if they subsequently register with the Office of the Public Guardian. It is possible to only award a LPA for property and affairs, which will prevent the nominee from making any decisions in relation to welfare.

The main differences between the two systems are as follows:

- The LPA holder does not have to apply to the court when the person who it concerns becomes mentally incapable. The LPA is now only registerable with the Office of the Public Guardian.

- In order to activate an LPA the attorney must seek a witness to support the claim that the person conferring the power is no longer mentally capable.

- Whereas an EPA could be awarded to several people, the LPA is normally awarded to one person whom can then nominate others to help make different decisions.

- The LPA entitles its holder to make life changing decisions for the mentally incapable person - these might include the way they live, their medical care and any 'life sustaining treatment'.

The main similarities:

- Both the EPA and LPA allow the person with the power to deal with a mentally incapable person's financial affairs.

- Anyone holding a power of attorney can obtain advice from the Office of the Public Guardian.

- If those acting under an EPA or LPA are found to not to be acting in the best interests of the vulnerable person or there have been allegations of abuse, the OPG will investigate the matter.

- A power of attorney, whether an EPA or LPA confers a huge amount of power to the person receiving it. Therefore such an arrangement should not be created without using a lawyer.

Although since October 2007, people have only been able to create a Lasting Power of Attorney, any Enduring Power of Attorneys created prior to this date remains valid and active.

by: Tim Bishop

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