Lasting Powers of Attorney

There was a fundamental change on the way in the way powers of attorney are created and the powers that they can give attorneys.  which was introduced in October 2007, when the Enduring Power of Attorney (EPA) was replaced by the Lasting Power of Attorney (LPA).  EPAs are no longer available, alhtough existing EPAs remain effective..

 

A power of attorney can be a godsend in cases in which people become incapacitated and unable to deal with their own affairs. Setting up an EPA is a sensible precaution for many people.

 

 

Both types of power of attorney are created so that someone’s affairs can be looked after by someone else. In the case of a standard EPA, this is limited to a person’s financial affairs, but the LPA can be used to give much wider powers to the attorney. Any EPA or LPA should be only be undertaken with the advice of a solicitor, as they give considerable rights to the attorney, even in their most limited forms.

  

Under an EPA, if the attorney wishes to take over exclusive handling of the affairs of the creator of the EPA when that person is no longer mentally competent, he or she must apply to the court. Although LPAs have to be registered when they are to be used, there will no longer be any need to inform anyone when they are to be put into effect, so it will no longer be evident to third parties when a person is no longer able to manage their own affairs.

 

Under an LPA, the person granting the power of attorney must when it is created, obtain a certificate, signed by a competent witness, stating that they are mentally competent and not making the LPA under the influence of someone else. A wide range of people (including, for example, teachers, accountants, civil servants and shop-keepers) are deemed to be competent to make such a judgment and witness the document.

An LPA also allows the appointment of an ‘attorney for personal welfare’, who is permitted to decide whether ‘life-sustaining treatment’ is to be provided when the person granting the power is no longer able to give informed consent.  The definition under the MCA’s definition of ‘life-sustaining treatment’ is also rather vague. It is the ability of attorneys to make life-or-death decisions which is causing much disquiet about LPAs in the legal profession.