Public Guardian Reports Boom in Powers of Attorney

On 1 October 2007, Lasting Powers of Attorney (LPAs) replaced Enduring Powers of Attorney (EPAs). Since that date, it has no longer been possible to create a new EPA, although those already in existence remain valid.

According to the Office of the Public Guardian, applications to register LPAs and EPAs peaked at more than 8,000 in September and are expected to rise further - to 10,000 or more - in December.

Both forms of attorney are designed to allow people who can no longer manage their own affairs to appoint others to do so for them. The main difference between the EPA and the LPA, from the donor’s perspective, is that an EPA relates solely to financial matters whereas an LPA can include what is called a Personal Welfare LPA. This allows the attorney to make decisions regarding the health of the person appointing them and, when permissible, to refuse medical treatment on their behalf. This form of LPA can only be acted on by the attorney when the donor no longer has mental capacity.

Under an EPA, the attorney can act on behalf of the donor without applying to register the power with the Court of Protection. If it does become necessary to obtain the approval of the Court, the attorney can act unilaterally on behalf of the person appointing them. Many EPAs were registered very shortly after being created, which raised doubts about the fitness of the person making the appointment. An LPA must be registered with the Court of Protection before it can be put into effect.

An LPA requires that a certificate is obtained from a professional  or someone who has known the person making it for at least two years, stating that the person making the LPA understands its purpose and scope and that no duress or undue pressure has been put on them to persuade them to make it. The person supplying the certificate must be someone other than the appointed attorney.

Acting as an attorney under an LPA is more complex and time-consuming than acting under an EPA. However, the creation of an LPA is a very practical solution to the problems that can arise if someone is no longer able to deal with their own affairs. 

 

Guidance on LPAs.

The contents of this article are intended for general information purposes only and shall not be deemed to be, or constitute legal advice. We cannot accept responsibility for any loss as a result of acts or omissions taken in respect of this article.