Lasting powers of attorney came into effect on 1 October 2007, under the auspices of the Mental Capacity Act 2005. They replaced Enduring powers of attorney, though any such powers of attorney conferred by donors before 1 October 2007 will continue to have effect.
Unlike an ordinary power of attorney, lasting powers of attorney are not intended to be revocable and are to be used where a donor has lost, or is at risk of losing capacity.
Lasting powers of attorney are generally divided into two types:
- those granted in relation to managing a person’s financial affairs
- those conferred for decisions about a person’s health and care
As with ordinary powers of attorney, the powers must be conferred by means of a deed (a signed legal document), which is signed by the donor and details the full extent and scope of the attorney’s powers and ability to act on the donor’s behalf. This takes the form of a prescribed form from the Office of Public Guardians which lasting powers of attorney need to be registered with before attorneys can exercise their authority.
The deed must also specify whom the donor wishes to appoint as attorney. This can include both primary attorneys, and secondary attorneys who will be appointed if the primary attorney no longer has capacity to perform the role.
If a donor wishes to appoint both types of lasting attorney, they may decide to use the same attorney in relation to both financial affairs as well as health and medical care. Alternatively they may appoint different attorneys. With the latter option however, it may be the case that different attorneys will need to work together in relation to any issues which arise.
Lasting Power of Attorney for Financial Affairs
With this type of lasting power of attorney, the attorney will have a wide ranging power to act on the donor’s behalf, including paying bills, selling property or investments, or simply managing the donor’s bank account.
Anyone who is over 18 can choose to confer this type of lasting power of attorney. Similarly anyone who is over 18 and possesses mental capacity to act as attorney, can be appointed to do so. One restriction in place however is that the attorney must not be bankrupt or the subject of a debt relief order when they agree to act as attorney.
Multiple attorneys can be appointed, though the donor will need to consider how such an arrangement is to work in practice, and whether the attorneys will be act individually on a joint and several basis.
Authority to deal with financial affairs can also be used while the donor still has the mental capacity to act themselves. If a donor wishes that the power of attorney only comes into effect subject to their loss of mental capacity, this can be specified in the deed.
Lasting Power of Attorney for Health and Care
The second type of lasting power of attorney can, in contrast, only be used where the donor has lost the mental capacity to make decisions on their own behalf.
The attorney can make decisions about the type of medical treatment the donor can receive, as well as their diet, where they live, and how they spend their time, unless it is specified otherwise.
This decision making capacity does not generally include decisions over whether a donor can be given life sustaining treatment, and decisions in this regard will remain within the remit of medical professionals, unless express provision is made in the deed under which the power of attorney is granted. Donors will be able to express this choice in section 5 of the form used to record and register the lasting power of attorney.