Enduring Powers of Attorney (EPAs) were documents used before October 2007 to give power to an attorney of your choosing to take care of your property and affairs. They can now no longer be made, and whilst they provided a valuable safeguard for anyone losing mental capacity, they had significant restrictions. Most noteworthy there was no mechanism to give someone power to help you make decisions in relation to your health and welfare.
Since 1st October 2007 these outdated documents were placed with the more robust Lasting Power of Attorney (LPA), which contains far greater safeguards than their predecessors.
In addition to now containing the ability to include health and welfare protection, there is now a certificate section where the donor (the person making the LPA) chooses an independent person to confirm that the donor understands the power and importance of the LPA and is not under any pressure to make it.
Secondly, the donor can choose people to notify that they are registering an LPA. This is particularly useful, and once notified, that person has the opportunity to object to the LPA being registered. An example of where a notified person may object is if the donor has already lost capacity.
Next, the donor can choose when their attorneys can make decisions for them in relation to their property and financial affairs, and power can be given even whilst the donor still has capacity. This is not the case with health and welfare decisions, where the attorney can only make decisions once the donor lacks capacity. With a health and welfare LPA, the donor can also choose whether to give their attorneys the power to make decisions regarding sustaining treatment. Alarmingly too few people realise that if you don’t have an LPA the only people able to make decisions regarding life sustaining treatment is a healthcare professional or a social worker.
An LPA contains a ‘preferences’ and ‘instructions’ section where the donor can write down things they may prefer their attorneys to do, or specific instructions which the attorneys must follow to the letter. Take care with instructions as without the right advice these can be as restrictive as they are useful.
In all cases an attorney has a statutory duty to act in your best interests, and in fact their duties are set out clearly in the Mental Capacity Act Code of Practice.
Of course, you don’t need to have a lawyer to register an LPA, but then you also don’t one when you buy a house but who would venture down that avenue without the right advice.
This information provided in this article is not intended to constitute legal advice and each relationship breakdown requires careful consideration in our view by a fully qualified Solicitor before decisions are made and before you embark on a certain course of action.
Penn Chambers Solicitors
0207 183 1485