Under the terms of the Mental Capacity Act 2006, and with effect from October 1st, 2007 it is no longer possible to draw up an Enduring Power of Attorney (EPA). However, all EPAs drawn up and signed and witnessed prior to that date remain effective for the rest of the life of the Donor. An EPA must still be registered when the Donor is or is becoming mentally incapable of handling their own affairs.

What is a Lasting Power of Attorney?

The LPA is a legal document that enables a person's trusted representative(s) - known as Attorney(s) - to oversee their financial and property affairs. Dealing with money matters in old age or ill health can be difficult and worrying - perhaps even impossible. Although you may nominate a Receiver to handle your affairs, this can be a lengthy and costly process. The simplest solution is for you (the Donor) to appoint one or more Attorneys to manage your affairs on your behalf if you become unable to do so.

There are two different types of LPA:

i. A Property and Affairs LPA, and

ii. A Personal Welfare LPA

Property and Affairs LPA

This type of LPA allows your Attorney to make decisions on your behalf about your property and affairs, including paying your bills, collecting your income and benefits or selling your house subject to any restrictions or conditions. It does not allow your Attorney to make decisions about your personal welfare

Personal Welfare LPA

This type of LPA allows your Attorney to make decisions on your behalf about your personal welfare, including whether to give or refuse consent to medical treatment on your behalf and deciding where you live.

These decisions can only be taken on your behalf when you lack the capacity to make them yourself, for example, if you are ill, unconscious or because of the onset of a condition such as dementia. It does not allow your Attorney to make decisions about your property and affairs.

Who might need an LPA?

Most of us will be fortunate enough to live long lives, but we may not always be able to manage our own affairs. If you were to suffer significant physical or mental incapacity, an LPA could make your life much easier and less stressful for you and your loved ones, as well as protecting your interests. An LPA is a little like an insurance policy: you hope that you'll never need it, but if you do - it's invaluable.

How do I make an LPA?

The LPA is an official form that must be completed and signed by the Donor and Attorneys in the presence of a witness. Your TAS consultants can guide you through the whole process simply and swiftly.

What can my Attorney do?

You can give your Attorney general authority to manage all your finances, including paying your bills, signing cheques, dealing with your bank, and buying or selling property and making decisions on medical treatment. However, you are free to restrict the Attorney's powers if you wish. For example, you may want to insist that they obtain medical evidence before they can use their powers, or require them to account for their actions annually to a solicitor or relative.

When do my Attorney's powers become effective?

Once a Property and Affairs LPA is signed, you can continue to handle your own financial affairs. If you prefer your Attorney to help you with them, then the LPA must be registered. However, once an Attorney believes that you are, or are becoming mentally incapable, they must register the LPA with the Court of Protection in order to take full control of your financial affairs.

A Personal Welfare LPA must also be registered before it can be used, but decisions can only be made on your behalf when you are unable to do so yourself.

What if I want to cancel the LPA?

Provided you are still mentally capable, you can make a 'Deed of Revocation' that ends the LPA. Once the LPA is registered with the Court of Protection, however, you would need medical evidence and the Court's permission to revoke the LPA.

What happens when I die?

When you die, the LPA ceases to be valid and the powers of your Attorney(s) end.

Can Attorneys charge for their services?

Professional Attorneys are entitled to charge for their work. If you appoint a friend or family member as Attorney, then they are unlikely to charge but may claim reasonable out-of-pocket expenses when the LPA ends.

Who can advise an Attorney about their role?

Your TAS consultant is happy to offer advice and guidance to an Attorney, and detailed advice and guidance is also available from The Office of the Public Guardian.

A Case study:

Frank weston's life changed in a hundred ways when his elderly mother Grace suffered a major stroke. Unable to walk or communicate, she needed full-time care after leaving hospital. Frank was left not only with the problem of caring for her as best he could, but also with managing her affairs.

Frank and Grace had always assumed that he'd be able to look after her finances if she ever became unable to do so herself. Now, however, the court deemed her mentally incapable and therefore Lasting Power of Attorney could not be sought.

Frank had to apply to The Office of the Public Guardian for the only alternative - Receivership. The process was lengthy and time-consuming, and meant that her money was untouchable for months, despite all the funds she needed for her care, transport, medical expenses and support. Eventually, Frank was granted Receivership for which he had to pay over £1000 along with annual fees. After that, Frank had to suffer the indignity of regular statutory checks to prove that he was looking after his mother appropriately.

"If only we'd arranged an LPA when she was healthy," said frank, "all this distress, expense and worry could have been avoided. Since this happened, I've made sure I'm covered by an LPA so if the worst happens to me, no-one else in my family will have to go through what Mum and I have endured."

For further information about Lasting Power of Attorney, contact your local TAS consultant, who will be pleased to discuss it with you.