An attorney is a person who is given the legal responsibility to act on behalf of another person.
While in good health, your client may be concerned how their affairs will be run should they become unable to manage their own finances due to an illness, such as dementia. Or it may be that they have affairs in the UK but are moving abroad.
A person who does not have the legal capacity to enter into a contract, for example a minor or mentally incapacitated person, cannot appoint an attorney.
What is an enduring power of attorney?
An ordinary power of attorney automatically ceases if someone becomes mentally incapacitated and this can create problems for those responsible for managing the individual’s affairs.
An enduring power of attorney (EPA) can continue if the donor becomes mentally incapacitated, although it has to be registered with the Office of the Public Guardian if the attorney believes that the donor is losing mental capacity. An EPA can be revoked only with the consent of the Court of Protection.
What is a lasting power of attorney?
From 1 October 2007, EPAs were replaced by lasting powers of attorney (LPAs). EPAs made before that date can remain in force, but all new arrangements must be LPAs. There are two types of LPA:
1. Health and welfare, which gives the attorney power to make decisions over issues such as medical care or moving into residential care but can only be used once the donor can no longer make decisions for themselves
2. Property and financial affairs, which gives the attorney power to manage the donor’s bank accounts, collect benefits, and sell property, and can be used even if the donor has mental capacity, as long as the donor gives permission.
In both cases, the LPA must be registered with the Office of the Public Guardian before it can come into effect.
What happens if no power of attorney is in place?
The Mental Capacity Act 2005 supports and protects individuals who lack the capacity to make their own decisions. It promotes supported decision-making, which is the process of providing support to those who need help making their own decisions.
It also makes provision for substituted decision-making, where decisions are made on behalf of the individual in their best interests, for instance by a court appointed deputy. If a person loses mental capacity and does not have a valid LPA or EPA in place, the Court of Protection can appoint a deputy.
