Knowing Your Power

Ordinary Power of Attorney

Ordinary Powers of Attorney are usually created for a set period of time, although they can be left more open ended. They might be used in cases as simple as where the Donor is going abroad and is unable to do something themselves but their application might be where the donor is unable to act for some other reason for example a physical impairment and wishes someone else to have the authority to act on his or her behalf. To set up this document is relatively simple and cost effective and the document is operative from the date it is executed

An Ordinary Power of Attorney will usually end upon the request of the Donor at any time using a Deed of Revocation and will automatically be revoked if the Donor loses mental capacity.

An Enduring Power of Attorney (EPA) much like the Ordinary Power of Attorney gave the power to those you appointed to act on your behalf in relation to Property and Affairs, subject to any restrictions, the only difference being that the document continues to have effect should the Donor loose their capacity. When the donor looses their capacity their Attorneys have a duty to get the document registered. Since the 30th September 2007 you can no longer make an EPA as the document has now been replaced by a document called a Lasting Power of Attorney.

From October 2007, LPA’s replaced Enduring Powers of Attorney (EPA) in England and Wales

A Lasting Power of Attorney (LPA) is a means by which you can give someone authority over your property and financial and/or health and welfare affairs in the event of your incapacity. It is a legal document appointing a person or persons of your choice to be your attorney(s).

a property and financial affairs LPA, similar to an EPA; and
a personal health and welfare LPA, which can include provisions for giving or refusing consent to medical treatment in circumstances where the donor has lost the capacity to make such decisions themselves.

You can set up one or both types. If you have an EPA you can also set up a separate LPA to cover your personal health and welfare.

If you have an existing EPA it can continue to operate however if you have made an LPA this could cause confusion at a later date particularly if you have appointed different Attorneys under your LPA than your EPA and it may well be worth revoking the EPA. You can revoke your LPA and EPA at any time providing you still have mental capacity.

The Lasting Power of Attorney was the result of a lot of consultation with various organisations concerned with the elderly and those with mental health issues. Although the property and financial affairs LPA is similar to the old EPA it is more detailed and gives the donor more flexibility and the chance to influence and guide their chosen Attorney’s as well as appoint a replacement. The document is only able to be used when it is registered however continues should the donor subsequently loose their capacity thus allowing the Court of Protection to hold a database of who has created the document and have greater control in the event of any abuse which of course they were not able to do so with an unregistered EPA

If you know someone who is incapable of making an LPA because they are considered to have lost their mental capacity then a persons finances and welfare can still be taken care of by the appointment of a ‘Deputy’(this used to be known as a Receivership Application)

Deputies are appointed by the Court of Protection, and a Deputy order is the document given by the Court, which sets out a Deputy’s powers. A Deputy’s powers in relation to property and affairs may include receiving income such as benefit payments, retirement pension, occupational pension or interest and dividends earned on investments. The order may also authorise the deputy to receive capital such as money from banks, building societies or other financial institutions held on behalf of the person lacking capacity, and to spend this money appropriately on their behalf. A Deputy’s powers in relation to personal welfare may authorise the Deputy to make decisions about the care or medical treatment that the person who is lacking capacity receives.