Lasting Powers of Attorney The New Law in Detail

There is a fundamental change on the way in the way powers of attorney are created and the powers that they can give attorneys.  The change stems from the recent Mental Health Act (MCA). If you are concerned that you or one of your relatives may not be able to manage their own affairs, we advise you to familiarise yourself with the new rules, which were originally intended to come into effect in April 2007. It was announced in December 2006 that the implementation date was to be deferred until October 2007. For many people, a current Enduring Power of Attorney (EPA) will be more suitable than the incoming Lasting Power of Attorney (LPA). The EPA will not be available after next April.

 

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 will be able to 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.

  

Firstly, it is important to note that an existing EPA will continue to be valid after LPAs are introduced and that EPAs will be able to be written up to April 2007. 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 will 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 will, when it is created, have to 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 will also allow the appointment of an ‘attorney for personal welfare’, who will be 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.

 

For many, if not most, people an EPA is probably the better option. If the October 2007 deadline is missed, care should be taken when creating an LPA to obtain the professional advice of a solicitor in order to ensure that it meets your specific requirements