The creation of the LPA

Wendy Scarr B.A. (Hons) TEP
0113 320 5000
wills@winstonsolicitors.co.uk

Legislation

Implementation of the Mental Capacity Act 2005 on the 1st October 2007 signalled the end of being able to make Enduring Powers of Attorney and instead the Lasting Powers of Attorney were introduced. There are two types of LPAs, one relating to property and financial affairs and the other dealing with personal welfare. Both are legal documents that enable someone to appoint an attorney to sort out their affairs should they become unable to do so themselves.

There are also, what are known as general powers of attorney, which relate to authorisation for wide-ranging use or for specific periods or events. However these are usually for a specified time period and are automatically revoked if the person granting the power of attorney loses mental capacity.

Arguably the changes seen in 2007 have granted the area of LPAs more of a personalised approach and certainly the aim has been to give people greater flexibility over how money is spent, at the same time as affording protection for the more vulnerable in society. While the LPA is generally seen as more complex and expensive compared to the EPA, there have been noticeable advantages in that the initial granting of the power, when the donor still has the ability to make key decisions regarding his future, as well as the coming into force of the power, when the donor has lost that capacity, is more tightly controlled than before.

Before 2007

The situation before lasting powers of attorney came into existence saw an enduring power of attorney (EPA) granted to somebody on behalf of those who felt unable to continue managing their finances. An EPA could be used while the person concerned still had mental capacity, provided that they consented to it being used, however if they subsequently lost mental capacity the attorney was then obliged to register the EPA with the Office of the Public Guardian.

An Enduring Power of Attorney was a short documents that people could easily fill in themselves. However, they did not deal with welfare and health issues and there were concerns over banks not understanding the processes properly, as well as fears that the attorneys could defraud vulnerable people.