What is a Power of Attorney?  A Power of Attorney is a deed by which one person (Donor) gives another person (Attorney) the authority to act in their name on their behalf. This may be useful in some circumstances, for example where a person travels abroad regularly or is physically unable to leave their home and would therefore find it difficult to deal with some or all of their financial affairs.

However, these general types of Power cease to be effective if the Donor loses mental capacity. Accordingly, special powers of attorney have been created, to cater for the mental inacpacity of the donor. The current form is the Lasting Power of Attorney, which replaced the Enduring Power of Attorney in 2007.

Enduring Power of Attorney - although it has not been possible to make an Enduring Power of Attorney (EPA) since October 2007, a valid EPA that was signed prior to that date can still be registered with the Office of the Public Guardian. If mental capacity becomes an issue, registration of the EPA must take place before the EPA can be used

Lasting Powers of Attorney - EPA’s have been replaced by Lasting Powers of Attorney (LPA) and the powers that can be given to an Attorney have been expanded.

You may be worried about what will happen in the future if you have an accident or become ill and no longer have the mental and/or physical capacity to look after your affairs. By setting up an LPA at this stage, as a precaution, you can decide who will manage your affairs should you ever lose mental capacity.
An LPA is an important legal document that enables a person who has capacity and is over the age of 18 (the Donor) to choose an Attorney (or several Attorneys) to make decisions on their behalf.

If you appoint more than one attorney then you must decide whether they can only make decisions together (jointly) or whether they can make decisions on their own (jointly and severally). If you appoint the Attorneys to act jointly then they must act together and the power will cease if one should die or lose mental capacity themselves. If you appoint the Attorneys to act jointly and severally then each attorney can act independently, which may be more convenient, but may lead to a lack of protection for the Donor.

There are 2 different types of LPA’s:

  • A property and financial affairs LPA for decisions about finances, such as managing the Donor’s bank accounts or selling their house (this type of LPA allows for the same powers and restrictions that could be given under an EPA); and  
  • a health and welfare LPA for decisions about both health and personal welfare, such as where the Donor will live, their day-to-day care or medical treatment (this type of power could not given under an EPA).

Role of the Attorney - an Attorney is appointed to make decisions as if they were the Donor themselves. An Attorney must act in the Donor’s best interests and there are certain limitations on what an Attorney may do, for example they cannot give excessively large gifts.

Registration of LPA - an LPA must be registered with the Office of the Public Guardian (OPG) before it can be used. Under the old EPA rules an EPA only had to be registered when the Donor lost mental capacity, but LPA’s must be registered as soon as they are to be used even where the Donor still has mental capacity.

If it is not intended to use the LPA until the Donor loses mental capacity then the LPA can remain unregistered until such time as it is required, if ever.   An LPA can be altered or cancelled at any time whilst the Donor has mental capacity.

How we can help  - we can talk you through all aspects of the LPA process, including considerations as to suitable attorneys and tailoring an LPA to suit your needs. We can also help you and your family to register the LPA when required, or to register a pre-existing EPA, in the event that you began to lose mental capacity.

We are also pleased to act as professional Attorneys, either where there are no suitable family or friends to act as Attorney or simply because you like the peace of mind of knowing that we are experienced in dealing with the affairs of Donors.

What if you do not have an EPA or an LPA and you have started to lose mental capacity - when making an LPA a Certificate must be signed, either by a person who has known you for two years (but not a family member or a member of your Attorney’s family) or a suitably qualified individual, which states that you understand the purpose of an LPA and the scope of the powers you are giving to your attorneys. It may be possible to make an LPA even if your doctor has diagnosed early dementia or if you suffer some other accident or illness which affects your mental capacity; however you must satisfy the person providing the certificate that you fully understand the document you are signing and its effect.

However, if your mental capacity had already deteriorated to the extent that you could not understand the nature and scope of the LPA then a friend, relative or a solicitor or other suitable professional would need to make an application to the Court of Protection to become your Deputy. This process can be time consuming and expensive. Sadly, it is the Court that decides who should become your Deputy and look after your affairs, and you would have no say in the decision.

If your mental capacity is already diminishing then it is important to act quickly as we may still be able to assist you in making an LPA that can save a lot of time, money and unnecessary distress for you and for your family and friends, at a difficult and uncertain time.

Please do not hesitate to call our specialist team for further help and advice :-

At our Stafford Office - Tel 01785 252377

Jemma Blake - email Jemma        Sally Hatton - email Sally

At our Stoke on Trent office - Tel 01782 813315

Sarah Johnson - email Sarah        Carole Hill - email Carole