Mental Capacity Act 2005
Lasting Power of Attorney
Lasting Powers of Attorney (LPA) were introduced with the Mental Capacity Act in October 2007, replacing Enduring Powers of Attorney (EPA).
A Lasting Power of Attorney allows a person to choose someone that they trust to make decisions on their behalf about things such as their property and affairs or personal welfare at a time in the future when they no longer wish to make those decisions or they may lack the mental capacity to make those decisions themselves.
A Lasting Power of Attorney can only be made whilst the donor still has capacity to make this decision. The donor must be over 18.
A Lasting Power of Attorney can only be usedafter it is registered with the Office of the Public Guardian.
There are two types of Lasting Power of Attorney
- Property and Finance Lasting Power of Attorney – this can be used whilst the donor still has capacity, from the date stated on the LPA, or from when the donor loses capacity.
- Personal Welfare Lasting Power of Attorney – this can only be used once the donor has lost mental capacity to make decisions about their personal welfare.
The Lasting Power of Attorney document will state what decisions the attorney is authorised to make on behalf of the donor.
Lasting Power of Attorneys are regulated by the Office of the Public Guardian, who have powers to investigate their operation.
Lasting Power of Attorneys can be applied for using the application forms available from the Office of the Public Guardian website http://www.publicguardian.gov.uk/index.htm
There is a fee for making an application and a certificate provider must to complete a form declaring that the applicant understands the LPA and is not being pressurised to apply for it. The certificate holder can be someone who has known the doner personally for two years or a professional chosen by the doner who could be
- a registered healthcare professional, including a GP
- a barrister, solicitor or advocate
- a registered social worker
- an Independent Mental Capacity Advocate (IMCA).
Enduring Power of Attorney
Enduring Powers of Attorney already drawn up prior to October 2007 are still valid. From October 2007 they have been replaced with Lasting Powers of Attorney.
Enduring Powers of Attorney (EPA), made prior to October 2007 can only give authority to an attorney to manage property or financial affairs.
The Enduring Powers of Attorne can be used whilst the donor has capacity, without being registered, or after they lose mental capacity as stated on the EPA. When the donor loses capacity the Enduring Powers of Attorne must be registered with the Office of the Public Guardian or else it cannot be lawfully used.