Powers of Attorney

There are many reasons why you may want to appoint a trusted friend, family member or professional to act on your behalf in a Power of Attorney capacity. You may be concerned that your ability to make decisions may diminish in the future due to ill health (both physical and mental), and want to put something in place now. By making these arrangements your affairs will be looked after if you lose mental capacity, and you can make sure that your best interests are taken into account even if you can’t make decisions for yourself.

There are three distinct categories of Powers of Attorney:

1. Lasting Powers of Attorney (LPA)

   There are two different types of LPA:

   • Health & Welfare LPA
     A Health & Welfare LPA allows you to choose one or more people to make decisions for things such as medical treatment. A Health & Welfare LPA can only be used if you lack the ability to make decisions for yourself.
   • Property & Financial Affairs LPA
     A Property & Financial Affairs LPA lets you choose one or more people to make property and financial affairs decisions for you. This could include decisions about paying bills or selling your home. You can appoint someone as an attorney to look after your property and financial affairs at any time. You can also include a condition that means the attorney can only make decisions when you lose the ability to do so yourself.LPA’s are by far the most used type of Power of Attorney. Having an LPA is a safe way of maintaining control over decisions made for you because:
     • it has to be registered with the Office of the Public Guardian (OPG) before it can be used
     • you choose someone to provide a ‘certificate’, which means they confirm that you understand the significance and purpose of what you’re agreeing to
     • you can choose who gets told about your LPA when it is registered (so they have an opportunity to raise concerns)
     • your signature and the signatures of your chosen attorneys must be witnessed
     • your attorney(s) must follow the Code of Practice of the MCA 2005 and act in your best interests
     • the OPG provides helpful support and advice

2. Enduring Powers of Attorney (EPA)

   The Mental Capacity Act 2005 (MCA 2005) repealed the Enduring Powers of Attorney Act 1985 and it is no longer possible to create a new EPA. However, valid EPA’s that were executed before the MCA 2005 came into force on 1 October 2007 will continue to be valid even if they have not been registered.

3. Ordinary Powers of Attorney (OPA)

   Section 10 of the Power of Attorney Act 1971 provides for the making of an OPA to manage the donor’s affairs. An OPA is usually made when it is difficult for the donor to manage their affairs, for example because of a physical disability or when the donor is travelling abroad.

Nicholls Law also offers Powers of Attorney for Businesses – something not a lot of business owners consider, but something that could have serious implications for a business if an owner/director was to lose mental capacity for an extended period of time, i.e. through hospitalisation. Click here to find out more.