The Lasting Power of Attorney has arrived
PUBLISHED: 14:24 14 January 2010 | UPDATED: 14:54 20 February 2013
Victoria Wells from SA Law in St Albans looks at the legal ramifications as the Enduring Power of Attorney is replaced
WHEN the Mental Capacity Act 2005 finally came into full force on October 1, 2007, the Enduring Power of Attorney (EPA), so beloved of solicitors and clients alike, was replaced by the dreaded Lasting Power of Attorney (LPA).
Apart from the new name, what has actually changed? The short answer... rather a lot.
The MAIN differences are:
n An LPA must contain a certificate completed by an independent person (the Certificate Provider) to confirm that the Donor of the Power understands the purpose and scope of the LPA, and that no undue pressure or fraud is involved. There was no such safeguard for EPAs;
n An LPA can contain the names of anyone whom the Donor wants to be notified of an application to register the LPA. EPAs only require that specified relatives be notified, and if there are no such relatives, then no one need be told;
n The Attorney cannot act under an LPA unless it is registered at the Office of the Public Guardian;
n The Attorney under an LPA has a statutory duty to act in the Donor's best interests. Under an EPA, it was only a common law duty.
Perhaps the most important difference is you can make an LPA which enables your Attorneys to make decisions about your personal welfare, including where you live, your day-to-day care, giving or refusing consent to treatment, and the provision of care services.
The Attorney will only be able to make such decisions if the Donor loses the capacity to do this for themselves, and they can only make decisions regarding life sustaining treatment if the LPA expressly allows this.
The forms for LPAs are considerably longer than those for EPAs, 25 pages instead of four or five. There are more issues for the Donor to consider, and more choices to make. The Certificate Provider must discuss the contents with the Donor, and the Attorney must fully understand their duties. The document has to be completed and executed in a specified order. Needless to say, all of this will increase the cost of making an LPA, and there is then the fee of 150 for the registration of the LPA, without which it cannot be used.
However, there is no doubt that the LPA provides more protection from the dishonest Attorney, who may obtain the power by unscrupulous means, or who may use the power for their own benefit. The nature of the old EPAs made it easy for such people to control a vulnerable person's assets, and the improper making of gifts was, in particular, widespread.
Given that the new 'Personal Welfare' LPAs can literally give power over life and death, it is all the more important that these safeguards are in place, and on balance the new LPAs should indeed help those whom they are intended to help - the vulnerable.