The Mental Capacity Act (MCA) 2005 introduced Lasting Powers of Attorney (LPA) on the 1st October 2007, replacing Enduring Powers of Attorney (EPA) from that date; although EPA's already set up remain valid.

LPA's are a new type of power of attorney under which the donor of the power can delegate to the donee(s) of the power [the Attorney(s)] authority to make decisions about matters such as the finances and property (Property and Affairs LPA) of the Donor, or their healthcare (Personal Welfare LPA). There are two separate documents for the different LPA. When acting under both/either, the Attorney must have regard to the Codes of Practice and must follow the principles of the MCA 2005.

If more than one Attorney is chosen, the Donor has the option of appointing them to act jointly (all must act together) or jointly and severally (act together or independently). There is also the option of choosing a joint appointment for some matters, and a joint and several for others. Care needs to be taken, as apparently the British Association of Bankers will not accept the validity of such a deed where there is a mix of appointments.

The property and affairs LPA, subject to any restrictions you may choose, gives the Attorney power to do anything you could do, such as opening, closing and operating bank accounts on your behalf, selling/buying property etc. A personal welfare LPA can delegate decision making powers over your personal welfare to the Attorney, including whether to give or refuse consent to medical treatment and deciding where you are to live.

The LPA cannot be used until it has been registered at the Office of the Public Guardian (OPG), and there is a £150 Court Fee. Once registered, a property and welfare LPA can be used whilst the donor has capacity (unless there is a restriction against that) whereas a personal welfare LPA can only be used when the donor has lost capacity to make decisions.

The LPA has two advantages over the EPA in that it extends the range of decisions which can be delegated to an Attorney and also the Attorney must always have regard to the principles of the MCA 2005 when making a decision.

LPA's can only be made on pro-forma forms produced by the OPG. Due to their very nature, and complexity, it is recommended that legal advice is sought when making one.

For further information contact Iain Robson at iain.robson@close-thornton.co.uk or call him on 01325 466461

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