INTRODUCTION
Lasting Powers of Attorney (“LPA”) came into effect on 1st October 2007, and replaced the existing “Enduring Powers of Attorney” system. Effective from that date, it is no longer possible to create an Enduring Power of Attorney - although any EPAs already created will continue to be valid. (For further information about EPAs, please see our client guide to “Powers of Attorney”)

As with its predecessor, an LPA is a document whereby a person (the donor) gives another person or persons (the attorney/s) power to act on his behalf and in his name in relation to his affairs. In addition, an LPA can be relied upon even if the donor later loses mental capacity.

An LPA cannot be used unless and until it has been registered at the Office of Public Guardian, which can take a few weeks. Thus, if you give your attorney immediate power to make decisions on your behalf, s/he will not be able to so act until the document has been fully registered. There is an administrative fee for registering each power (currently £150).

In addition, unlike its predecessor, the LPAs come in two separate categories:

(a) Property and Affairs (which are similar in scope to the EPAs);

and

(b) Personal Welfare.

Thus, when considering whether to create an LPA, the donor must decide whether s/he wants to address property and financial affairs, or personal welfare matters, or both. There are separate documents for each, each of which must be registered before it can be use.

Both categories of Lasting Powers of Attorney enable the donor to appoint a replacement attorney in the event that the chosen attorney (or one of them) cannot act when required.

Both forms of Power must be signed by each of the donor, the attorney(s), and the replacement attorney(s) (if applicable).

CERTIFICATE PROVIDER
In addition, the forms must be signed by a “Certificate Provider”. The Certificate Provider is an independent person chosen by the Donor who must confirm that the Donor understands what s/he is doing in creating the LPA, has the capacity to create it, and is not under any duress in doing so. A Certificate Provider can either (a) have known the Donor personally for at least two years or (b) have a certain set of professional skills or expertise which enables them to provide the certificate (e.g., is a solicitor or a doctor etc).

PROPERTY AND AFFAIRS LPA
The Property and Affairs LPA is similar in its scope and application to the old Enduring Power of Attorney. The attorney can only rely on it to make decisions regarding the donor’s financial and property matters.

As with the EPAs, a donor creating a Property and Affairs LPA can give the attorney very broad, general powers to act in relation to all of the donor’s financial or property matters, or he can limit the scope of the power (either by limiting the actual powers with the attorney is given, or by limiting the matters to which the power applies).

In addition, the donor can state that this LPA will only come into effect if he is unable to make his own decisions about his property or finances.

Alternatively, the Property and Affairs LPA can come into effect immediately (however it must be registered before it can be relied upon – a process which can take several weeks).

The donor can appoint as many attorneys as he wishes, and can also appoint substitute attorneys to act if one or more of the attorneys cannot so act. If more than one attorney is appointed, the donor can specify whether they must all act together, or whether any one of them can act independently of the others. Alternatively, the attorneys can act together in relation to some matters, and independently in relation to other matters.

As well as the donor, all attorneys named on the Power – including substitute attorneys – must sign it. The donor must chose a Certificate Provider to sign the LPA, to certify that the donor has the capacity to create the Power, and is not being coerced into doing so.

PERSONAL WELFARE LPA
The Personal Welfare LPA is a new creation, and covers areas relating to a donor’s personal and health matters which were not previously addressed.

A personal welfare LPA might include decisions about, eg:

• Where the donor should live, and with whom
• Who the donor could have contact with
• The donor’s day to day care – including diet, medicine, dress etc
• The making of appointments for medical treatments
• The donor’s social activities
• Consenting to or refusing medical treatment and / or examination on the donor’s behalf

Unlike the Property and Affairs LPA, the Personal Welfare LPA can only come into effect if the donor is incapable of making his own decisions. However, it can be registered with the Office of Public Guardian at any time prior to this occurring; as such it is recommended that a donor registers a Personal Welfare LPA as soon as it has been properly signed, as there might be sudden and unforeseen circumstances which necessitate an attorney relying upon it.

A very important provision in the Personal Welfare LPA is that the donor must specify whether he is granting his attorney(s) the authority to give or refuse consent to life-sustaining treatment on behalf of the donor.

Whatever the scope of the power given to the attorney(s), the donor can place restrictions and/or conditions on the attorney(s). Further, the donor can set out guidance which the attorney can consider when making decisions.

Likewise, the donor can appoint as many attorneys as he wishes, and can also appoint substitute attorneys to act if one or more of the attorneys cannot so act. Similarly, if more than one attorney is appointed, the donor can specify whether they

must all act together, or whether any one of them can act independently of the others. Alternatively, the attorneys can act together in relation to some matters, and independently in relation to other matters.

CHOOSING YOUR ATTORNEY(S)
As with the old Enduring Powers of Attorney, considerable thought should be given to your choice of attorney. The chosen person(s) will have powers to act on your behalf in relation to your financial and/or personal welfare affairs.

You can appoint as many attorneys as you wish, or just one. Appointing more than one attorney provides a greater “checks and balances” to ensure that the attorneys are acting appropriately and in the donor’s best interests at all times.

If you are considering creating both types of LPA, then you can, if you wish, appoint different attorneys for the different roles.

Who to appoint is, of course, a personal decision. However, you should be satisfied that the chosen attorney has the skills required to manage your property and financial affairs, or to make decisions about your personal welfare. It goes without saying of course that you should only appoint persons who you are sure would act in your best interests at all times.

CREATING LASTING POWERS OF ATTORNEY
The LPA documents which the donor must complete to create a LPA are very detailed and comprehensive, and we strongly recommend that you seek professional advice if you are considering preparing either or both of the documents.

While both are new documents, the Personal Welfare LPA in particular covers areas previously out of limits to attorneys, and care should be taken in its creation.

If you have any queries about the new LPAs, please feel free to contact us either by phone, or via our website. Our specialist practitioners will be happy to help and advise.

© Clegg Manuel 2008

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