You may have heard of an Enduring Power of Attorney (EPA) and be aware that this was replaced in October 2007. (EPAs set up prior to 1st October 2007 remain valid, however, it should be noted that if the Donor is believed to be becoming, or is mentally incapable of managing their affairs then the Attorney(s) have a duty to register the EPA with the Court of Protection).
It cannot be simply assumed that the Donor has lost mental capacity and Attorneys must follow the principles of The Mental Capacity Act 2005. Copies of the Code can be obtained from Her Majesty’s Stationary Office.
If you hold an Enduring Power of Attorney and still have mental capacity and are able to make decisions for yourself (ie.the EPA is unregistered) you can make a Personal Welfare LPA to run in conjunction with the EPA.
So, What has Replaced Enduring Powers of Attorney?
These have been replaced with three different documents:
- A Lasting Power of Attorney (LPA) for Property and Financial Affairs
- A Lasting Power of Attorney (LPA) for Health & Welfare
- A General Power of Attorney
Please note these Powers are only applicable to England and Wales.
LPA for Property and Financial Affairs
A Lasting Power of Attorney for Property and Financial Affairs gives authority to the appointed Attorney to handle property and financial matters for the Donor.
The powers extend to all matters concerning the Donor’s finances: this could include selling property belonging to the Donor, (including the Donors home), buying property in the Donor’s name, managing bank accounts and investments, continue to run their business and make decisions about the Donor’s healthcare and payment for this care.
LPA for Health & Welfare
A Lasting Power of Attorney for Health & Welfare covers decisions relating to your social and healthcare needs which can include where the Donor lives, how they are cared for and what healthcare they receive, for example the decision to send the Donor to a nursing home.
Attorneys of a Health & Welfare LPA can only use this power if the LPA document has been registered with the Office of Public Guardian and the Donor is not capable of making the decision themselves.
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An Advance Directive or Living Will can be overridden by a subsequent Health & Welfare LPA if the Donor has specifically chosen to give their Attorney the authority to give or refuse life-sustaining treatment on their behalf. This also means that a Health & Welfare LPA can be overridden by a valid and applicable Advance Directive (Living Will) made after the Health & Welfare LPA, if in the LPA the Donor has chosen not to give authority to their Attorney to authorise life-sustaining treatment.
The Health & Welfare LPA covers both the welfare of the Donor and the consent or refusal of consent to life sustaining treatment.
Further rulings on LPAs
An LPA must contain a certificate completed by an independent person to confirm that the Donor understands the power and importance of the LPA and is not creating the power under duress.
Anyone the donor specifies can be notified of the registration of the LPA (up to 5 people), however if there is no one to notify then the Donor must have a second Certificate provider.
The attorney or replacement attorney chosen by the donor must not be a bankrupt.
It should be noted that Lasting Powers of Attorney have no legal standing until registered with the Public Guardian’s Office. They can be registered at any time ie: before the Donor loses mental capacity or when the Attorney believes this to have happened.
After registration, the Donor can continue to make decisions providing they still have the mental capacity to do so
Revoking or Cancelling the Power
The Donor can revoke or cancel the LPA (providing they have the mental capacity to do so. If a spouse or civil partner is the Attorney, or Donor, dissolution or annulment of the relationship will automatically revoke the power.
An LPA for Property and Affairs is revoked if the Attorney(s) or the Donor are declared bankrupt.
An LPA for Welfare is not terminated by bankruptcy.
General Power of Attorney
A General Power of Attorney allows the Attorney to make decisions and act in any matters relating to the Donor’s property and affairs (with the exceptions of making a Will, making gifts or performing in the Donor’s role as a Personal Representative (administrator) or Trustee.)
It is important to note that the Donor remains liable for the actions of the Attorney and as such you should only appoint an Attorney who you implicitly trust.
A General Power of Attorney (GPA) is effective immediately and will remain in force until it is either cancelled by the Donor (the person on whose behalf the Attorney is acting) or,should the Donor become mentally incapable, then the General Power is automatically revoked. The General Power would also be revoked by the death or bankruptcy of either the Donor or the Attorney.
Unlike a Lasting Power of Attorney a GPA there is no scope for restricting the Attorney’s powers.
A General Power of Attorney can be revoked at any time by either writing cancelled across the document or simply tearing it up.