General and Specific Powers of Attorney
Anyone with mental capacity may create a Power of Attorney by which they give someone else the legal authority to act on their behalf. Powers may be General or Specific; if you think you will be unable to sign conveyancing documents when they need to be signed, you might think of giving your Solicitor a either a General or a Specific Power of Attorney to enable him to do so on your behalf.
A General or Specific Power of Attorney usually becomes invalidated if the person who created it loses mental capacity.
For many years until 2007 it was possible to make an Enduring Power of Attorney which would enable your attorneys to continue to deal with your ‘property and affairs’ after you had lost mental capacity subject to them registering the EPA when this happened.
The Mental Capacity Act 2005 has now introduced the Lasting Power of Attorney and EPA’s can no longer be made. An existing unregistered EPA made before 1 October 2007 remains valid but cannot be amended. The Attorney is required to register it with Office of the Public Guardian if he believes the person who created it is becoming mentally incapable.
You may cancel your existing EPA if you still have mental capacity to do so; you should seek our advice about this. You could replace it with a Property and Financial Affairs Lasting Power of Attorney. Alternatively you might retain your existing EPA but make a Health and Welfare Lasting Power of Attorney to run alongside it.
There are two types of LPA
- Property and Financial Affairs LPA; and
- Health and Welfare LPA.
These are much longer documents than the old EPA. Many people find them quite daunting and we suggest you take our advice before making one.
If you wish to make a LPA you need to think about these questions
- Do you wish to make both types of LPA or just one of them ?
- Who do you wish to be your Attorney or Attorneys ? You may appoint more than one of them. You could have different Attorneys for the different types of LPA. They need to agree to act as your Attorney.
- Who do you wish to appoint as your Named Person ? A Named Person is someone you chose and who has to be notified when an application is made to register the LPA if you lose mental capacity. They have the right to object to the registration of the LPA if they have concerns about it.
- A Lasting Power of Attorney lasts until your death and it continues to be valid even after you have lost your mental capacity.
Property and Financial Affairs Lasting Power of Attorney
This enables you to appoint one or more Attorney to make decisions on your behalf about your property and financial affairs.
You can also authorise your Attorney(s) to manage your financial affairs and property on your behalf. You can authorise your Attorney(s) to do this for you both while you still have mental capacity as well as when you come to lack capacity.
Clients sometimes appoint Devereux & Co to undertake this role for them, for example if they are living abroad or if they are elderly and find it hard-going managing their own day to day finances. It generally involves little more than making sure you receive the income you are due to receive and paying your bills.
This type of LPA does not allow your Attorney(s) to make decisions about your personal welfare. If you want someone to be able to make health and welfare decisions on your behalf you will need to make a Health and Welfare Lasting Power of Attorney.
Health and Welfare Lasting Power of Attorney
For example, you can authorise your Attorney(s) to make major decisions such as whether or not you should go into a residential home and, if so, to choose a home for you. Alternatively you could just ask them to make day to day decisions about matters such as your diet, your dress, or your daily routine.
You can authorise your Attorney(s) to make decisions about particular types of medical treatment. The application form gives you the opportunity of giving permission to your Attorney(s) to take part in decisions on your behalf about ‘life-sustaining treatment’ and we can explain to you the safeguards that are put in place.
Your Attorney(s) can only make these decisions for you after the LPA has been registered and when you lack the capacity to do so yourself; for example, if you are unconscious or you have lost your mental capacity.
If you do not make a Lasting Power of Attorney
It is very desirable that people make Lasting Powers of Attorney while they still have the mental capacity to do so; in that way they can then avoid the need for their affairs to be dealt with by the Court of Protection as will have to be the case if they lose mental capacity without having made a Lasting Power of Attorney. Applications to the Court can be expensive and a source of great anxiety to family members. See our notes on Court of Protection.