Power of Attorney

Sometimes one person will want to give another person authority to make a decision on their behalf. A power of attorney is a legal document that allows them to do so. Under a power of attorney, the chosen person (the attorney or donee) can make decisions that are as valid as one made by the person (the donor).

Before the Enduring Powers of Attorney Act 1985, every power of attorney automatically became invalid as soon as the donor lacked the capacity to make their own decision. But that Act introduced the Enduring Power of Attorney (EPA). An EPA allows an attorney to make decisions about property and financial affairs even if the donor lacks capacity to manage their own affairs.

The Mental Capacity Act replaced the EPA with the Lasting Power of Attorney (LPA). It also increased the range of different types of decisions that people can authorise others to make on their behalf. As well as property and affairs (including financial matters), LPAs can also cover personal welfare (including healthcare and consent to medical treatment) for people who lack capacity to make such decisions for themselves. The donor can choose one person or several to make different kinds of decisions.

Since the Mental Capacity Act came into force in 2007, it is not possible to make new EPAs. Some donors will have created EPAs before the Act came into force with the expectation that their chosen attorneys will manage their property and affairs in the future, whether or not they have capacity to do so themselves. If donors still have capacity, they can cancel the EPA and make an LPA covering their property and affairs. They should also notify attorneys and anyone else aware of the EPA (for example, a bank) that they have cancelled it.

Some donors will choose not to cancel their EPA or they may already lack the capacity to do so. In such cases, the Act allows existing EPAs, whether registered or not, to continue to be valid so that attorneys can meet the donor’s expectations. An EPA must be registered with the Office of the Public Guardian when the attorney thinks the donor lacks capacity to manage their own affairs, or is beginning to lack capacity to do so.