Until 1 October 2007, you could appoint someone to act on your behalf as your attorney by an Enduring Power of Attorney (“EPA”). The EPA would remain valid even if you lost your mental capacity, at which time it would need to be registered at the Court of Protection.
Many people have made EPAs and they remain valid and capable of registration for as long as the person who made it is alive.
However, an EPA only allowed an attorney to deal with a person’s financial affairs. Therefore the Mental Capacity Act 2005 created the new Lasting Powers of Attorneys (“LPAs”) to deal with both someone’s “property and financial affairs” as well as their “personal welfare”.
A Property and Financial LPA is designed for you to appoint an attorney to make a range of decisions which include the buying and selling of property, dealing with your tax affairs, operating bank accounts and claiming benefits on your behalf. Whilst you have mental capacity the Property and Financial LPA can be used at your direction, but if you later lose capacity it can still be used by your attorney.
A Health and Welfare LPA allows you to appoint an attorney to make decisions relating to your care, accommodation, consenting or refusing medical treatment on your behalf as well as other day to day matters such as your diet or dress. However, this type of LPA can only be used if you are unable to make these decisions yourself as you lack the capacity to do so.
Although there are separate forms for each LPA, both contain common provisions setting out how your attorneys are to act. Both types of LPA must be registered at the Office of the Public Guardian before they can be used by your attorneys.
If you do not have an appropriate LPA, the Court of Protection does have the power to appoint people to manage your affairs, but the procedure can be costly and time consuming. Furthermore, you will have lost your right to choose who will be responsible for your financial affairs and/or welfare.
Your legal advisor can help with all aspects of creating a LPA. They can help you chose your attorney(s), help decide which type of LPA is right for you and ensure that your LPA is registered correctly.
Caroline Fletcher is a Solicitor with QualitySolicitors Gould & Swayne based in Street.
Legal advice may vary with the circumstances of each case - be sure to take your solicitor’s advice.