A Lasting Power of Attorney ('LPA') is a special type of power created in accordance with the Mental Capacity Act 2005 (‘MCA 2005’). The MCA 2005 applies to England and Wales and provides a clear statutory framework for persons over the age of 18 years who lack capacity to make decisions for themselves, or who have capacity and want to make preparations for a time when they may lose capacity in the future. Everyone working with and caring for adults who lack capacity, including health and social care professionals, families and other carers, are obliged to comply with the MCA 2005.
An LPA enables a person aged 18 years or over (the donor) to appoint another person or persons (their donee or attorney) to act on their behalf, following the principles of the MCA 2005, if they subsequently lose capacity.
Unlike the situation once covered by Enduring Powers of Attorney (EPA) made under the Enduring Powers of Attorney Act 1985, a person can now choose to delegate decisions affecting their personal welfare - including healthcare and medical treatment decisions – in addition to decisions concerning their property and financial matters- to their attorney(s).
Since the MCA2005 came into force it has not been possible to make new Enduring Powers of Attorney, although EPAs made in proper form before 1st October 2007 continue to be effective and will require to be registered with the Office of the Public Guardian in the event that the person giving such power loses mental capacity and we can provide help and assistance in registering an EPA.
If you were to become incapable of managing your affairs then unless you have an LPA or valid EPA in place at least one member of your family might have to undertake a lengthy and potentially costly application to the Court of Protection to be appointed as your “Deputy” before they would be able to help with managing your affairs.
2 types of LPA are available
Property and Affairs LPAs - which will allow your attorney to operate your bank accounts and to take decisions relating to your property.
Personal Welfare LPAs - dealing with medical and welfare matters which allow your attorney to take decisions relating to your healthcare and living arrangements in the event that you lose your mental capacity.
An LPA is a lengthy and complex document and the rules relating to preparation and registration of such a Power of Attorney are exacting and precise.
It is only too easy for errors to arise and it is important that you take expert advice to ensure that any appropriate restrictions are included in the LPA and that it is properly registered with the Office of the Public Guardian (OPG).
MORRIS READ & CO Solicitors
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