What the changes mean - Mental Capacity Act 2005

The New Incoming Position: Lasting Powers of Attorney

The main difference that will be introduced with LPAs is that in addition to making decisions about your finances, with an LPA you can also entrust your chosen attorney(s) to make important decisions about your personal welfare extending to medical treatment and long-term health care.

LPA’s allow you to nominate different attorneys to assume responsibility for different decisions i.e one attorney responsible for finances and another attorney responsible for decisions relating to your personal welfare. If you appoint several attorneys for each area then you should specify whether they should act jointly or individually. Whatever the scope of their decision making responsibilities your attorney(s) are under a duty to act in your best interests at all times.

In contrast to EPA’s they will only become valid once they are registered with the new Court of Protection.

As with EPAs you can revoke an LPA at any time providing that you have the mental capacity to do so.

Finances and Property

The attorney(s) powers are similar to those permitted under EPAs. They include, general management of your financial affairs including the operation of a bank account and buying and selling property. Likewise, the attorney is not permitted to make gifts on your behalf (other than those usually made by you where an established pattern can be continued). They cannot make a Will on your behalf.

Personal Welfare  

Your attorney can have responsibility for important decisions e.g. as to where you live and who cares for you. They may also give or refuse consent to the carrying out or continuation of medical treatment.

You must decide whether you want your attorney(s) to act generally or only in relation to specific situations. You should clearly specify the scope of your attorney(s) authority and any restrictions. For example, the attorney(s) will only be able to make decisions about end of life treatment if you specifically authorise them on the LPA form. It should be noted that your attorney(s) will not have the right to demand certain medical treatment for you if your medical professionals are not in accordance with their views.

It is vital that you should give considerable consideration to who you wish to nominate as your attorney(s).

Your attorney(s) cannot make decisions in any area where you have the capacity to make the decision yourself. This emanates from one of the key principles of Decision Specific Capacity which is embedded at the heart of the Code of Practice.

What Decisions Cannot be Made

The new legislation does not extend under any circumstances to decision making on your behalf which involves:

·          Entering into a Marriage/Civil Partnership

·          Placing a child for adoption

·          Voting at an election  

The old legal system

Code of Practice

Current situation - Enduring Power of Attorney

The new LPA process

Examples of when LPA may apply

Your questions
 

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