There has been a fundamental change to the way in the way powers of attorney are created and the powers that they can give attorneys. The change stems from the recent Mental Capacity Act (MCA). If you are concerned that you or one of your relatives may not be able to manage their own affairs, we advise you to familiarise yourself with the new rules, which came into effect from 1st October 2007.
A power of attorney can be a godsend in cases in which people become incapacitated and unable to deal with their own affairs.
Similarities and Differences
Powers of attorney are created so that someone’s affairs can be looked after by someone else. In the case of a standard EPA, this is limited to a person’s financial affairs, but the LPA will give much wider powers to the attorney. Any LPA should be only be undertaken with the advice of a solicitor, as they give considerable rights to the attorney, even in their most limited forms.
Firstly, it is important to note that an existing EPA will continue to be valid after LPAs are introduced. Under an EPA, if the attorney wishes to take over exclusive handling of the affairs of the creator of the EPA when that person is no longer mentally competent, he or she must apply to the court. Although LPAs will have to be registered when they are to be used, there will no longer be any need to inform anyone when they are to be put into effect, so it will no longer be evident to third parties when a person is no longer able to manage their own affairs.
Under an LPA, the person granting the power of attorney will, when it is created, have to obtain a certificate, signed by a competent witness, stating that they are mentally competent and not making the LPA under the influence of someone else. A wide range of people (including, for example, teachers, accountants, civil servants and shop-keepers) are deemed to be competent to make such a judgment and witness the document.
An LPA will also allow the appointment of an ‘attorney for personal welfare’, who will be permitted to decide whether ‘life-sustaining treatment’ is to be provided when the person granting the power is no longer able to give informed consent. The definition under the MCA’s definition of ‘life-sustaining treatment’ is also rather vague. It is the ability of attorneys to make life-or-death decisions which is causing much disquiet about LPAs in the legal profession.
Care should be taken when creating an LPA to obtain the professional advice of a solicitor in order to ensure that it meets your specific requirements.
