Lasting Powers of Attorney
Lasting Powers of Attorney (LPAs) were introduced by the Mental Capacity Act 2005 (MCA) in October 2007 and replaced Enduring Powers of Attorney (EPAs). While existing EPAs remain valid, from 1st October 2007 only LPAs can be created. There is still the option of creating general powers of attorney under the Powers of Attorney Act 1971, however it must be remembered that these types of power cannot be used once a person becomes unable to manage their affairs.
There are two separate LPA forms: one for property and financial affairs and the other for health and welfare decisions. A property and financial affairs LPA effectively replaces the EPA in relation to managing financial affairs. A client (the Donor) can appoint attorney(s) to make all the decisions about their property and finances that they would have made themselves, subject to any restrictions and/or conditions specified in the LPA. Unless the donor has included a restriction in the LPA, an attorney appointed under this type of LPA can act whether or not the donor lacks mental capacity to make their own decisions. There may be several reasons why a client needs help from an attorney while they still have capacity, for example it may be easier for them to give someone else the power to pay their bills or collect their benefits as they may be house bound, or out of the country for long periods of time. If this is the case, the attorney is under a duty to consult with the donor on any decision they make while the donor still has the capacity to manage their own affairs.
The health and welfare LPA allows an attorney to make any decision concerning personal welfare, and this can include decisions about medical treatment, whether the donor should move into residential care and choosing a care home, and more day to day issues, such as decisions concerning diet, dress or daily routine. A donor must also indicate on the LPA form whether or not they wish to give their attorney(s) power to give or refuse consent to ‘life sustaining treatment’. This is defined as any treatment that a doctor considers necessary to sustain life and it will depend on the circumstances of a particular situation.
Examples of life-sustaining treatment might include:
• a serious surgical operation, e.g. a heart bypass;
• receiving chemotherapy, radiotherapy or undergoing surgery to treat cancer; or
• an organ transplant.
But life-sustaining treatment could also include more day-to-day procedures or treatments – for example, a course of antibiotics if you have breathing problems and develop pneumonia.
Whether treatment is life sustaining or not will depend on the situation. The important factor is if the treatment is needed to keep the donor alive.
Again a donor can decide to include restrictions and/or conditions on the use of this LPA in order to limit an attorney’s power.
By contrast to the property and financial affairs LPA, under this type of LPA decisions can only be taken on the donor’s behalf when the donor lacks the capacity to make their own decisions. An attorney therefore must assess the donor’s capacity to make any decision before proceeding to make them on their behalf. Any decision made on behalf of someone must be in their ‘best interests’. Furthermore, the MCA 2005 says that every adult should be assumed to have capacity to make a particular decision unless it is established that they lack capacity to do so, and they must be given all appropriate help to make a decision.
Without a health and welfare LPA in place, no one has authority to make decisions, however, it is possible for health and social care professionals to make decisions if they think a person lacks mental capacity and the decision they want to make is in that person’s best interests. A recent case where this happened involved an elderly women being forcibly removed from her daughter’s house by social workers who did not agree that it was in her best interests to be cared for by her daughter.
If more than one Attorney is appointed, the donor can choose whether to appoint them ‘jointly’ which means all attorneys would need to sign any document on behalf of the donor, or ‘jointly and severally’, which allows any one of the attorneys to act on the donor’s behalf. If the donor wishes, they can appoint their attorneys to act jointly on some matters and jointly and severally on others, and they would need to specify this on the LPA. It must be remembered though that attorneys must not only consult the donor on any decisions, but must also liaise with each other on any action taken. Furthermore, if attorneys are appointed jointly and one of them becomes unable to act for any reason, the LPA will come to an end, whereas if they are appointed jointly and severally, the LPA remains valid.
One of the main differences between an EPA and an LPA is the requirement for a certificate provider. This can be someone who has known the donor personally for at least two years, or someone who has the necessary skills to judge a person’s capacity to make an LPA, and this can include registered healthcare professionals, barristers and solicitors. The certificate provider cannot be one of the attorneys or a member of the donor’s or attorney’s family, or a business partner or employee of the donor or attorney(s). The role of the certificate provider is to confirm that the donor understands the purpose and scope of the LPA and that no fraud or pressure is being used to force the donor to make the LPA.
Another difference between EPAs and LPAs is that an LPA must be registered with the Office of the Public Guardian before it can be used. A registration fee is payable to the Office of the Public Guardian and currently this is £120.00 per LPA. We do recommend that clients register their LPAs as soon as they are complete as the registration process can take up to 8 weeks. On the LPA forms, the donor must name at least one person who will receive notification of the registration of the LPA. This can be anyone known to the donor but cannot be one of the attorneys. This person will then have the opportunity to object to the registration of the LPA, but their objection must be on either a factual ground, such as the attorney is bankrupt, or one of five prescribed grounds, including fraud or undue pressure has been used to force the donor to make the LPA. Any objection must be lodged with the Office of the Public Guardian within five weeks from receipt of the notice.
Provided there are no objections, the Office of the Public Guardian will register the LPA and return the original duly stamped. The details of the LPA will also be entered onto the central register of LPAs maintained by the OPG.
New forms from 1 October 2009
Many people have found the existing LPA forms too long (25 pages) and too easy to get wrong. New forms were therefore introduced from 1st October 2009 which should be simpler to use and understand without compromising the necessary safeguards. The new forms are certainly shorter (between 11 to 12 pages long), however, the old forms can still be used provided they are signed by the donor before 31st March 2011.
For further information on the above, please contact Elizabeth English:
elizabethenglish@cumberlandellis.com
Tel: 020 7242 0422
