Lasting Power of Attorney

From October 2007 individuals will be able to make a Lasting Power of Attorney (LPA) which will enable them to nominate individuals to make decisions on their behalf regarding their health and welfare, as well as their finances, should they lose mental capacity at some point in the future. There are also provisions for individuals to state their wishes regarding potential medical treatment that they may be offered in the future. The new LPA replaces the previous system of Enduring Powers of Attorney (EPA) which only covered financial matters. The change has come about as a result of the Mental Capacity Act 2005.

After October 2007 it will no longer be possible to create an EPA although those already in existence will remain legally binding. Under the LPA system it will be possible to appoint an attorney either for personal welfare or property and affairs purposes, or for both. It will not be possible to convert existing EPAs into LPAs.

To be legally binding an LPA needs to be registered with the new office of the Public Guardian as soon as it is created. Under the system of EPAs the attorney only needed to be registered when the individual was believed to have lost mental capacity. An LPA must also be ‘certified’ by someone who has known the individual for two years.

Once certified and registered, the attorney has the authority to act in accordance with the terms of the LPA. The attorney does not have the power to act for the individual unless they lose mental capacity. Third parties, such as banks or doctors, will need to see a copy of the document before they will accept an attorney’s instructions.