A new legal regime came into effect on 1
October which is intended to give greater
protection to elderly people than the enduring
power of attorney (EPA) that it replaces.
Like an EPA, a lasting power of attorney
(LPA) allows a person – the donor – to appoint
a relative, friend or anyone else they trust
to manage their affairs should they become
incapable of doing so themselves. But there
are many differences between the old and new systems.
LPAs come in two forms. The first, which is entirely
new, covers decisions about health, welfare
and housing. The second deals with property
and money, and is similar to an EPA. The donor can appoint one or more different
attorneys for these purposes, and can also specify any restrictions or requirements.
Another new feature is that an LPA is only valid once
it is registered with the Public Guardianship
Office. Registration will require a signed certificate from a reputable person.
This confirms that the donor understood the purpose
and scope of the LPA and that there was
no fraud or pressure on the donor, who must
therefore be mentally capable when making
an LPA.
In addition, the donor must nominate at least one
person, other than the provider of the certificate,
whom the Public Guardianship Office will
notify when the LPA is registered, or a
second certificate must be provided, which should
be signed by a different reputable person.
The need for two people to be involved,
apart from the attorney, is intended as an added safeguard for the donor
Once it has been registered, an LPA starts to operate
when the donor loses mental capacity.
However, a donor can also grant an LPA
over their financial affairs (but not their personal
welfare) that takes effect while the donor
still has capacity.
Clearly the right choice of attorney is important and
it is often best to appoint joint attorneys. Although
any attorney must by law act in the interests of the donor,
not everyone is equally up to the task. The
ideal time to prepare LPAs is in conjunction
with writing or reviewing your will. And they
are not just for older people – even a young person might suffer a serious injury.
The new LPA regime covers England and Wales.
Similar powers have existed in Scotland
since 2 April 2001 in the form of the continuing
power of attorney and the welfare power
of attorney. Northern Ireland retains the EPA regime.
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