The Mental Capacity Act 2005 ends the old mental Health Act and the Enduring Powers of Attorney Act 1985 and confirms that the new Lasting Powers of Attonrey (LPA), which replaces the old Enduring Powers of Attorney from the 1st October 2007.
Enduring Powers of Attorney (EPA) completey signed and witnessed correctly before 1st October 2007 will continue to become valid after 1st October 2007.
EPAs were limited to financial management of property and affairs, while LPAs have two types of powers, health and welfare and property and affairs.
Under the old EPAs no particular capacity or incapacity certificate was required at any stage. With the new LPAs a capacity certificate will be required.
The LPA will be registered with the Public Guardian’s office prior to use and under the old system relatives had to be notifed prior to registration. Now, in LPAs, the donor (the person giving away the power) can choose not to let relatives or other close people know what they plan to do.
One chief benefit of an EPA was that it can also be used before onset of incapacity as an Ordinary Power of Attorney. So if you wanted to go to the moon for a year, you could ask someone to take over your financial affairs for you. This remains unchanged.
There was no duty to an attorney (the person receiving the power) to follow the principals of the Mental Capacity Act or a code of practice. From October 1st there will be a specific duty to follow the principals in the Act and the code of practice.
Of course, there remains the duty to act in the donor’s best interest.
We’ll examine more about the new Lasting Powers of Attorney from now until the new powers become available on October 1st, remembering that a one to one with a consultant of LSUK will bring you right up to date with these legal changes that affect England and Scotland.
Filed under: Legal Advice, News
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