Gardner Leader

Lasting Powers of Attorney

1st October 2007

Rob Jobson, Associate within the Inheritance Protection Team at Gardner Leader Solicitors, provides brief details on the new Lasting Powers of Attorney (LPAs) that came into effect on 1st October 2007 and explains how they differ from Enduring Powers of Attorney (EPAs).

What is an LPA?

LPAs have effectively replaced EPAs, which can now no longer be prepared.
There are two types of LPA:

• A “Property and Affairs” LPA – which enables your attorneys to deal with your financial affairs and is a direct replacement for EPAs.
• A “Personal Welfare” LPA - which enables your attorneys to make decisions about your personal welfare if you are unable to communicate these decisions yourself; this is effectively a replacement for “living wills”.

I've heard LPAs are very complicated - is that true?

LPAs have about 25 pages to complete, substantially more than the 4 pages of an EPA. Much of the information required is relatively straightforward – your personal details, the details of the intended attorneys, whether you wish to place any restrictions on the attorneys’ powers etc. However, it will be necessary for an independent person to provide a certificate that you have the necessary mental capacity to prepare an LPA. This certificate can be provided either by someone who has known you for at least 2 years, or by someone who has relevant professional skills and expertise such as your GP, a social worker or a solicitor. The certificate cannot be provided by the intended attorneys.

When can my attorneys act?

Before they can act they must register the LPA with the Office of the Public Guardian. The registration process involves your attorneys notifying you and up to 5 relatives/friends that you have named in the LPA that they are applying for registration, and then actually applying for that registration. The process takes 5-6 weeks and there is small court fee payable.

Do my attorneys have to wait until I lose capacity before they act?

No – your attorneys will be able to register the LPA and act on your behalf at any time (e.g. during a long period of hospitalisation) unless you include a restriction in the LPA that it can only come into effect on your loss of mental capacity or in other specific circumstances.

What decisions can my attorneys make under a Personal Welfare LPA?

They can make any decisions relating to your personal welfare and how you are cared for medically. This can include accessing your medical records and giving or refusing consent to medical treatment according to your best interests. You will be able to specify the extent of the power available to your attorneys.

If I already have an EPA is it still valid?

Yes – EPAs that were signed before 1 October 2007 will remain valid.

Are there any alternatives to an LPA?

Yes – you could prepare a “general power of attorney”, but that would cease to have effect if you should lose your mental capacity. If you do not have an LPA (or EPA) and lose mental capacity then someone (normally a family member or close friend) will need to apply to the Office of the Public Guardian to act as your “Deputy”. This replaces the former “receivership” process and the Office of the Public Guardian will be involved with all decisions that the Deputy wishes to make on your behalf.

How do I prepare an LPA?

Call me on 01635 508080 and make an appointment to discuss your requirements.

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