On 1st October 2007 a new regime came into force which radically changes the way in which individuals can make delegated decisions. Under the provisions of the Mental Capacity Act 2005 it is no longer be possible to make Enduring Powers of Attorney (EPAs) and instead a new Lasting Powers of Attorney (LPAs) has been introduced. EPAs that were made before the 1st October 2007 remain valid.
The new LPAs are more wide ranging than EPAs and come in two forms; a Property LPA which can be used to deal with a person’s financial property and affairs and a Personal Welfare LPA to deal with decisions such as consenting to or refusing medical treatment on the donor’s behalf. An individual can choose whether to make both types of LPA or just one.
The LPA system is designed to offer greater protection to the Donor and, unlike EPAs, any LPAs will have to be registered with the Court before they can be used. The Mental Capacity Act also sets out principles that an attorney acting under an LPA must follow and the Personal Welfare LPA can only be used in circumstances where the Donor lacks the requisite mental capacity to make the particular decision.
Included in the LPA is a certificate confirming that the Donor has capacity to make the LPA. The person providing the certificate must be chosen by the Donor and be either someone who has known the Donor personally for two years, but is not a family member, or someone who possesses the relevant professional skills to give the certificate, e.g. a registered Health Care Professional or a solicitor. The Donor also now has the option of choosing the persons, if any, that they would wish to be notified if an LPA is to be registered.
The new system will inevitably be more complicated than the old EPAs but the theory behind it is the recognition that individuals should be allowed to make decisions which affect them if it is possible for them to do so.
Julie Burgess and Stephen McCann, George Davies & Co in Manchester
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