Many peo­ple will be aware that changes to the law relat­ing to Pow­ers of Attor­ney took place on 1st Octo­ber 2007. This arti­cle is intend­ed to pro­vide a lit­tle more detail on the changes.

Endur­ing Pow­ers of Attor­ney (EPAS) were intro­duced in 1987 and replaced on 1st Octo­ber 2007 by Last­ing Pow­ers of Attor­ney (LPAS), intro­duced under the Men­tal Capac­i­ty Act 2005.

First­ly, pro­vid­ed your EPA was valid­ly exe­cut­ed pri­or to 30th Sep­tem­ber 2007, it remains ful­ly valid and can be used in its nor­mal way. For those involved in the last minute rush to com­plete an EPA pri­or to the 1st Octo­ber, it is valid if you, as donor, signed it before 30th Octo­ber. Despite con­flict­ing infor­ma­tion from the author­i­ties, pro­vid­ing the donor exe­cut­ed a valid EPA by the due date, lat­er accep­tance of the role by the Attor­ney is valid.

Despite this, there may be rea­sons why you would wish to revoke your EPA in favour of an LPA (sever­i­ty see below) or to sup­ple­ment it with an LPA in rela­tion to wel­fare issues (see below).

Why LPAs?

There are a num­ber of rea­sons, the main two being;

  1. Age­ing pop­u­la­tion. There are already 8 – 900 peo­ple in this coun­try over 100. The threat of ill­ness, men­tal and phys­i­cal, is an ever-present one and it is sen­si­ble and pru­dent to pro­tect your wealth and health as far as pos­si­ble, by pass­ing deci­sion mak­ing to a trust­ed person(s).
  2. Secu­ri­ty. The Pub­lic Guardian­ship Office (now renamed as The Office of the Pub­lic Guardian), esti­mates that fraud occurs in 10 – 15% of cas­es where an EPA has been reg­is­tered. Con­sid­er­ing that pre­vi­ous­ly, EPAs only need­ed to be reg­is­tered when the donor lost his or her men­tal capac­i­ty, this is a fair­ly small num­ber out of the total EPAs in exis­tence and/​or use. The new LPAs con­sid­er­ably tight­en secu­ri­ty, and you may wish to con­sid­er an exist­ing EPA in favour of an LPA for this rea­son alone.

The New LPAS

There are two types of LPAs. The first LPA (PA) is designed sim­i­lar­ly to EPAs, to enable some­body to look after your finan­cial affairs. The safe guards” are up to 5 nom­i­nat­ed peo­ple, to be noti­fied when an LPA is reg­is­tered, and a cer­tifi­cate provider’ must sign a cer­tifi­cate to con­firm that you have entered into the LPA freely and with­out undue influ­ence or duress.

A Cer­tifi­cate Provider will gen­er­al­ly be a solic­i­tor or oth­er approved pro­fes­sion­al, although it can be any­body who has known the donor for at least two year.

The major change here, how­ev­er, is that the LPA must be reg­is­tered before it can be used. Appli­ca­tions must be made to the Office of Pub­lic Guardian (OPG) with pay­ment of the cur­rent fee (£150). The OPG noti­fy the per­sons you have nom­i­nat­ed, and they have 6 weeks in which to object, fail­ing which, the LPA will be registered.

To save cost, LPAs can be made (in the same way as EPAs) and held in safe cus­tody until required. This at least post­pones the pay­ment of the reg­is­tra­tion fees. How­ev­er, once reg­is­tered, the LPA (PA) can be used whether or not the donor has capacity.

The new type of LPA (PW) is designed to appoint some­one to make deci­sions on your wel­fare includ­ing for exam­ple, where you live and day to day care. This type of LPA will also allow your attorney/​s to make deci­sions regard­ing med­ical treat­ment includ­ing whether or not to accept life­sav­ing treat­ment, if you you autho­rise them to make those deci­sions. If you do grant an LPA (PW), it is advis­able to reg­is­ter imme­di­ate­ly, because this type of pow­er can only be used if you have lost capac­i­ty, which will ren­der the pow­er inef­fec­tive if this hap­pens before registration.

Although more expen­sive to set up than EPAs, they are still con­sid­er­ably cheap­er than doing noth­ing and rely­ing on the appoint­ment of a Deputy (Receiv­er) by the Court of Pro­tec­tion. For once, we have some­thing new which actu­al­ly seems to improve upon what we had before, unlike Home Infor­ma­tion Packs (HIPs), but that’s for anoth­er article.


This arti­cle appeared in the Wilm­slow Express 25/10/07