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You the Individual > Wills & Probate > Lasting Power of Attorney

The Mental Capacity Act 2005 ("the Act") introduced the creation of Lasting Powers of Attorney (LPA) on 1 October 2007. These replace Enduring Powers of Attorney. However, any Enduring Power of Attorney signed by the donor and attorney(s) prior to 1 October 2007 will remain valid.

What are the Advantages of Lasting Powers of Attorney ("LPA")

1. The Donor (the person signing the LPA) can appoint an attorney or attorneys to deal with their assets and also appoint an attorney or attorneys to make health and welfare decisions on their behalf. The Property and Affairs LPA and the Personal Welfare LPA are two separate documents which can be entered into together or independently.
2. Before an LPA can be entered into a person called a "Certificate Provider" must confirm that the donor understands the purpose of the LPA and that the donor has not signed the LPA under duress or pressure and no fraud is being used to induce the donor to sign an LPA. By introducing the Certificate Provider it is hoped to overcome the donor signing an LPA under duress. In most cases the Partners of Clarkes Solicitors will be able to be appointed as an attorney or serve as a Certificate Provider.
3. As a safeguard, the LPA must be registered at the Office of the Public Guardian before the attorneys are empowered to act.

When preparing to enter into an LPA one should give thought to the following:

1. Do you want to enter into a Property and Affairs LPA only or a Personal Welfare LPA only or do you want to enter into both LPAs? A Property and Affairs LPA will authorise the attorneys to manage your assets while the Personal Welfare LPA will authorise the attorneys to make health and welfare decisions on your behalf.
2. Who do you wish to appoint as your attorney(s)? If you want to enter into both a Property and Affairs LPA and a Personal Welfare LPA do you want to appoint the same attorney(s) or different ones? Do you want to appoint one attorney or more than one attorney? Do you want to place any restriction and/or condition on the attorney(s) you are appointing? Do you want to give your Attorney(s) guidance?
3. Who is able to be your "Certificate Provider"? A Certificate Provider must be an independent third party (i.e. not one of the attorneys).
   
   The Certificate Provider must be someone of your choice and be over the age of 18 years. They must be someone who has known you for at least two years or someone who possess skills to make the necessary judgement to give the Certificate such as a registered Health Care Professional, Social Worker, an Independent Mental Capacity Advocate, a Barrister, Solicitor or Advocate, or others who consider they possess the relevant professional skills and expertise to complete the Certificate. The role of the Certificate Provider is to confirm that the you (the donor) understand the purpose of the LPA and the scope of the authority under it; that no fraud or undue pressure is being used to induce you to create the LPA and that there is no other factor that would prevent the LPA being created.
4. Do you want the power granted under a Property and Affairs LPA to be effective immediately or only if you lose your mental capabilities to manage your own affairs? Do you want to give a general power over all your property and affairs or a general power to make all health and welfare decisions on your behalf or do you want to restrict the power to certain matters only?
5. You have the choice to name people to be notified when the LPA is to be registered at the Office of the Public Guardian. This can be a safeguard as they can raise concerns on your behalf.