Lasting Power Of Attorney - What Is It?

 by: Tim Bishop

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'), this has now been replaced with a Lasting Power of Attorney ('LPA'). 

An Enduring Power of Attorney was drawn up by a person with full mental capacity that could be registered if they later 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. 

Similar to an EPA (above), a Lasting Power of Attorney needs to be set up whilst a person has sufficient mental capacity and can then be exercised when they no longer have mental capability. The LPA gives further reaching powers than the EPA did, which allows the holder to control a person's care, welfare, treatment and financial arrangements. A LPA only becomes valid if they subsequently register with the Office of the Public Guardian. The LPA can be drawn up specifically to allow the nominee to make decisions only concerning property and affairs and not the person's welfare. 

The most important changes between the LPA and EPA are listed below: 

- 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 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.