Power struggle

The replacement for the Enduring Power of Attorney might prove to be a backward step

The Mental Capacity Act 2005, in England and Wales, came into force on October 1, 2007. It introduces a new type of power of attorney, called a Lasting Power of Attorney (LPA).

LPAs can extend to personal welfare matters, including healthcare, and there will be two forms: one for personal welfare and one for property and affairs.

LPAs include authority to make decisions when the donor no longer has the capacity to make those decisions on his or her own. They cannot be used without first being registered with the Public Guardianship Office. However, an LPA can also act as a “normal” power of attorney while the donor has full mental capacity, provided it has been registered.

This contrasts with the older, arguably more user-friendly, Enduring Power of Attorney (EPA), which only has to be registered when the attorney believes 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.

Furthermore, for an LPA to be valid, it requires a certificate that the donor is of sound mind and understands what it is that is being granted in the LPA. Since LPAs are considered confusing even by solicitors, many solicitors refrain from signing such a certificate for their clients.

EPAs created before October 2007 will continue to be valid and effective. Unfortunately no new EPAs can be drawn and we are left with the LPA regime.

Further information

If you would like to know more, or to speak directly to a solicitor, please either email us or call your nearest office.