The Final days of the Enduring Power of Attorney
Following on from my Article in May of this year, the time is now fast approaching when the law in relation to making an Enduring Power of Attorney is about to change.
After a person has lost mental capacity to handle their own affairs, their relatives can find it difficult to help as they are not authorised to access their bank accounts, sign documents or cheques etc. For this reason people have often made a document called an Enduring Power of Attorney (“EPA”) that allows them in advance to decide who should look after their personal, business, financial and property affairs if they become mentally incapable.
From 1st October 2007 you will no longer be able to make an EPA. Instead you will have to follow new, and a more expensive procedure, to make a Lasting Power of Attorney (“LPA”). EPA’s that were made before October 2007 will still be valid after that date.
The EPA allows the nominated person (the Attorney) to act only in relation to financial affairs and property. It can start immediately, or in the future if you become mentally incapable. At that point there is a legal obligation placed upon the Attorney to register the EPA with the Court of Protection, who will then formally permit the Attorney to continue acting as before.
The LPA is more comprehensive than an EPA and allows the person who is giving away the responsibility (the Donor) to choose someone to not only manage their financial affairs and property but also to make decisions concerning their health and welfare.
The LPA will allow the Donor to nominate different Attorneys to be responsible for different decisions. One Attorney could be responsible for your finances whilst another Attorney could look after your medical treatment and welfare.
An area of anxiety over LPA’s concerns entrusting decisions to Attorneys regarding medical and end of life treatment. The new form will encourage the Donor and the Attorney to discuss in advance what medical action should be taken in certain situations. The Attorney will only be able to make end of life decisions if the Donor has included a clear statement in the LPA. Also, the Attorney cannot demand certain medical treatment for the Donor if the medical professionals are not in agreement, nor will it allow the Attorney the right to make decisions which are not in the Donor’s best interests.
If you want more choice and control over your medical and health treatment then you might wish to wait until October 2007 to make a LPA.
The new system is more expensive and we would urge readers to consider making an EPA before 1ST October 2007 because thereafter only the LPA will be available. The document can then be retained with your Will until required. It is also worth noting that the EPA becomes effective immediately and can be used by the Attorney with the Donor’s permission in general circumstances. This could be useful for an elderly relative who has difficulty getting out and about, although remains mentally capable or indeed if the Donor is intending to be out of the Country for a period of time.
If you would like to make an appointment please contact our offices on the number below and we would be happy to assist.
Amanda Perrotton
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