The Lasting Power of Attorney process under the new rules

In order for it to be effective the LPA must be registered with the court regardless of your mental capacity.

This position is in stark contrast with the existing position with regards EPAs. In order for the document to be registered, it will need to be accompanied by a certificate confirming that you fully understand the nature and effect of the document that you have signed and further that there is no evidence of fraud or undue pressure upon you.

Once the LPA has been registered with the court, your attorney(s) will be able to act on your behalf in accordance with the terms of the LPA. In doing so they will be expected to provide copies to third parties for example banks, building societies and the Pension Service to enable them to act. The LPA will also form part of a central database where third parties are able to check that the authenticity of the document and that the attorney has the required authority.

The Fallback Position: Appointment of a Deputy by the new Court of Protection

If you have not made an LPA and you become mentally incapable of managing your financial affairs, the Court of Protection has intervention powers for the protection of the vulnerable by the appointment of someone to act in your best interests as a Deputy. Like Receivership, this is a far longer and costly process and whoever is appointed has to comply with extensive reporting obligations to the court on an ongoing basis.

The Deputy’s powers are similar to a Receiver / Attorney and although not automatically authorised to make a statutory Will on your behalf they can be specifically authorised by the court to do so. The Public Guardian will monitor what they do on your behalf.

Advanced Directives/Living Wills

Advanced Directives and Living Wills are already in existence but the Code of Practice aims to provide a means to legally formalise your advanced decisions in relation to consent to and refusal of medical treatment. If you have already made an Advanced Directive or Living Will you will be able to legally formalise your wishes by making an LPA from 1 October 2007.

Next steps

The importance of having an EPA or LPA should not be underestimated as it allows you to retain a considerable degree of control over the decisions that will affect your life should you lose mental capacity or simply be unable to manage your own affairs.

If you would like to appoint someone to manage only your financial and property affairs then you should act quickly and take advantage of the simpler format and less costly EPA procedure which will cease to be available on 1^st October 2007. If you consider that a more comprehensive document which extends beyond finances to personal welfare and medical decisions making is more suitable for you, or if you would like to formalise a Living Will, then it may be worthwhile waiting until October 2007 to make an LPA.

The old legal system

Code of Practice

Current situation - Enduring Power of Attorney

Examples of when LPA may apply

Your questions

If we can help you with an enquiry on this specific area of law - please contact us today for a free initial consultation.

Email: info@winstonsolicitors.co.uk

Or telephone us on 0113 268 8898 to speak to a specialist solicitor.

If you are calling from outside the area, use lo-call 0845 890 2277. We are open Monday to Friday, 8.30am to 5.30pm.

We look forward to working with you as a Winning Partnership.

Personal Injury Solicitor - About Us - Contact Us - Claims Calculator - Business Law - CICA - Conveyancing - Employment - Endowment - Personal Injury -
Probate & Wills - Legal News