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Power of Attorney

Power of Attorney is a legal document whereby one person (the "Donor") gives another person or persons (the "Attorney") the power to act on his or her behalf with regard to his or her property and financial affairs.

The most common types of Power of Attorney in England and Wales are:

Lasting Power of Attorney
Enduring Power of Attorney

What is a Lasting Power of Attorney (LPA)?

Sometimes one person will want to give another person authority to make a decision on their behalf. A power of attorney is a legal document that allows them to do so. Under a power of attorney, the chosen person (the attorney or donee) can make decisions that are as valid as one made by the person (the donor).

Before the Enduring Powers of Attorney Act 1985, every power of attorney automatically became invalid as soon as the donor lacked the capacity to make their own decision. But that Act introduced the Enduring Power of Attorney (EPA). An EPA allows an attorney to make decisions about property and financial affairs even if the donor lacks capacity to manage their own affairs.

The Mental Capacity Act replaces the EPA with the Lasting Power of Attorney (LPA). It also increases the range of different types of decisions that people can authorise others to make on their behalf. As well as property and affairs (including financial matters), LPAs can also cover personal welfare (including healthcare and consent to medical treatment) for people who lack capacity to make such decisions for themselves.

The donor can choose one person or several to make different kinds of decisions. See the Mental Capacity Act Code of Practice (link below) paragraphs 7.21-7.31 for more information about personal welfare LPAs. See paragraphs 7.32-7.42 for more information about LPAs on property and affairs. http://www.publicguardian.gov.uk/

Quick summary

Anyone asked to be an attorney should:
• consider whether they have the skills and ability to act as an attorney (especially if it is for a property and affairs LPA)
• ask themselves whether they actually want to be an attorney and take on the duties and responsibilities of the role.

Before acting under an LPA, attorneys must:
• make sure the LPA has been registered with the Public Guardian
• take all practical and appropriate steps to help the donor make the particular decision for themselves.

When acting under an LPA:
• make sure that the Act's statutory principles are followed
• check whether the person has the capacity to make that particular decision for themselves. If they do:
- a personal welfare LPA cannot be used - the person must make the decision
- a property and affairs LPA can be used even if the person has capacity to make the decision, unless they have stated in the LPA that they should make decisions for themselves when they have capacity to do so.

At all times, remember:
• anything done under the authority of the LPA must be in the person's best interests
• anyone acting as an attorney must have regard to guidance in this Code of Practice that is relevant to the decision that is to be made
• attorneys must fulfil their responsibilities and duties to the person who lacks capacity.

What is an Enduring Power of Attorney (EPA)?

An Enduring Power of Attorney is a legal process in which a person (the Donor) hands over to someone else (the Attorney) the power to decide what is done with their financial affairs and property.

The Attorney can use the power straight away if that is what the Donor wants. Or the Donor can make it clear that the EPA is only to be used if they become mentally unable to manage their affairs in the future.

In this way, an EPA allows the Donor to choose someone they trust now to deal with their affairs if they become mentally unable to manage them themselves in the future.

An EPA only covers decisions relating to a Donor's financial and property affairs.

How do LPAs compare to EPAs?

There are a number of differences between LPAs and EPAs. These are summarised as follows:

• EPAs only cover property and affairs. LPAs can also cover personal welfare.
• Donors must use the relevant specific form (prescribed in regulations) to make EPAs and LPAs. There are different forms for EPAs, personal welfare LPAs and property and affairs LPAs.
• EPAs must be registered with the Public Guardian when the donor can no longer manage their own affairs (or when they start to lose capacity). But LPAs can be registered at any time before they are used - before or after the donor lacks capacity to make particular decisions that the LPA covers. If the LPA is not registered, it can't be used.
• EPAs can be used while the donor still has capacity to manage their own property and affairs, as can property and affairs LPAs, so long as the donor does not say otherwise in the LPA. But personal welfare LPAs can only be used once the donor lacks capacity to make the welfare decision in question.
• Once the Act comes into force, only LPAs can be made but existing EPAs will continue to be valid. There will be different laws and procedures for EPAs and LPAs.
• Attorneys making decisions under a registered EPA or LPA must follow the Act's principles and act in the best interests of the donor.
• The duties under the law of agency apply to attorneys of both EPAs and LPAs (see paragraphs 7.58-7.68 of the Code of Pracitice).
• Decisions that the courts have made about EPAs may also affect how people use LPAs.
• Attorneys acting under an LPA have a legal duty to have regard to the guidance in this Code of Practice. EPA attorneys do not. But the Code's guidance will still be helpful to them.

For more information go to http://www.publicguardian.gov.uk/ and click on the 'Making Decisions for Someone Else' area.

http://www.publicguardian.gov.uk/decisions/being-attorney-lpa.htm

http://www.publicguardian.gov.uk/decisions/being-attorney-epa.htm