The Mental Capacity Act 2005 (which came into force on October 2007) changed the law surrounding powers of attorney. Prior to the act a person would apply for an Enduring Power of Attorney (‘EPA’), which was replaced by the more comprehensive Lasting Power of Attorney (‘LPA’).
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Existing Enduring Power of Attorneys remain valid
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. And that’s why they remain important. Because there are many thousands of EPA’s still in existence.
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. An EPA could be awarded to more than one person to deal with different aspects of a person’s financial affairs. The EPA did however only extend to dealing 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 Lasting and Enduring Power of Attorney – how they differ
The main differences between the two systems are as follows:
- The LPA holder no longer has to apply to the court when the person conferring the power is no longer mentally capable. 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 holder of an LPA can make life changing decisions on behalf of the mentally incapable person, for example regarding their lifestyle arrangements, medical care and ‘life sustaining treatment’. In contrast, for example under an EPA, the attorney cannot decide where the donor should live.
- Unlike the EPA, the LPA only becomes valid when it is registered. In contrast, the EPA became valid as soon as it was signed. The EPA only requires registration when the person giving the power loses capacity and the EPA is actually needed.
The Lasting and Enduring Power of Attorney – how they are similar
The main similarities of these 2 alternatives are as follows:
- 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 Office of the Public Guardian 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
Can I cancel an Enduring Power of Attorney?
Yes, but it depends on whether or not the EPA has been registered or not. an unregistered EPA can be cancelled at any stage by signing what is known as a “deed of revocation” – a formal legal document. However you can only do so whilst you maintain mental capacity.
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However, if your EPA has actually been registered, you are only able to cancel it with the written permission of the Court of Protection.
Can I replace an existing EPA with an LPA?
Yes, provided that you still have mental capacity. You could also make an additional LPA for decisions about your personal welfare.
Can I stop being an attorney under an EPA?
Yes, any attorney can simply decide to stop acting as an attorney. In addition the EPA automatically comes to an end if the donor passes on or cancels it.
How to register an Enduring Power of Attorney
An EPA must be registered as soon as the donor begins to become mentally incapable of handling his or her own affairs.
As an appointed attorney you must make sure that you inform the donor, any close family members and other attorneys that you are going to apply to register the EPA.
Registration involves a fee.
Can I object to the registration of an EPA?
Yes – if you are one of those close family members who has been notified of the intention to apply for registration.
But there is a strict time limit on objecting in this way.
Grounds for objection are as follows:
• the EPA is not valid. Among possible reasons are that the donor lacked mental capacity when the EPA was signed, or the EPA itself was not correctly signed and witnessed
• the EPA has been cancelled;
• the Donor does not yet lack mental capacity.
• one or more of the chosen attorneys is not is suitable
• that fraud or undue pressure induce the Donor to make the EPA and appoint the attorney;
What duties does an Attorney have?
The EPA itself should detail what powers have been granted to the Attorney.
However, any attorney must always consider the Mental Capacity Act and the supporting Code of Practice when acting on behalf of the Donor.
In particular any attorney has the following fundamental responsibilities
1. to always act in the donor’s best interests
2. to take into account the wishes and needs and wishes of the donor as far as is practicable.
3. not take advantage of the Donor’s position to gain any benefit for themselves.
In addition, it’s important that the attorney always keep their own assets and money separate from those of the donor
Do we need medical evidence of lack of mental capacity?
No, the Office of the Public Guardian doesn’t ask for evidence that the donor no longer has capacity before registering any EPA
What happens if you loses mental capacity and have not made an LPA or EPA?
In the absence of either a Lasting or Enduring Power of Attorney, losing the ability to manage your own affairs is likely to mean that the Court of Protection will need to be involved.
Click here to read more about the Court of Protection and how our solicitors can help
Can registration be refused?
Yes, and if that happens after the donor has lost mental capacity then an application to the Court of Protection may be necessary in order to appoint a Deputy to make financial decisions on their behalf.
Can the Donor still manage their own affairs?
Registering the EPA means that the Attorney takes over full responsibility from the Donor for managing their property and affairs. This means the Donor will be considered as unable to manage their own affairs. Should the Donor feel they are capable of being involved in managing some aspects, it is for them and their Attorney(s) to decide how this should work
Is having certified copies of the EPA useful?
Yes, some people and organisations may require a certified copy of the EPA as evidence that the attorney has authority to make decisions about the donor.
What about the General Power of Attorney?
The General or Ordinary Power of Attorney (GPA) is fundamentally different from both the EPA and LPA. Unlike those two documents, the GPA can only main in effect while the Donor retains mental capacity. It is usually only a short-term authority and is often found in connection with business.
Click here to read more about the General Power of Attorney