A Power of Attorney, often called a Lasting Power of Attorney (“LPA”) or Enduring Power of Attorney (“EPA”) if made before 2007, are legal documents created by a person, also known as the donor, whilst they have mental capacity.
The purpose of the documents is to allow the donor to give another person(s), known as an attorney(s), power to make decisions on their behalf if they later lose the mental capacity to make those decisions for themselves.
The most common types of Lasting Power of Attorney relate to property and financial affairs or health and welfare. Whilst Enduring Power of Attorneys relate solely to property and financial affairs.
The different types of Lasting Power of Attorney or Enduring Power of Attorney provide the attorneys with powers relating to specific matters, rather than general powers of decision making on the donor’s behalf. For example, an attorney under a property and financial affairs Lasting Power of Attorney or Enduring Power of Attorney will likely be able to help the donor pay their bills and expenses using the donor’s money. Attorneys should always check the terms of the particular document they have been appointed under, as each may have specific instructions or powers contained therein.
Lasting Power of Attorneys and Enduring Power of Attorneys must be signed by the donor, the attorney(s) and any substitute attorney(s). A third party must act as an independent certificate provider when the document is being made to verify whether that the donor has mental capacity at that time and is making it of their own free will. The document must be registered at the Office of the Public Guardian before an attorney can use it. Lasting Power of Attorneys can be registered immediately after being created, whereas Enduring Power of Attorneys must be registered when the donor has lost or is losing mental capacity.
General Powers of Attorney can be used to give more general powers to an attorney whilst a donor has mental capacity. These documents are often used to delegate power in respect of a particular transaction or issue that the donor lacks capacity in relation to or is unable to deal with at a certain time, even if they still have capacity.
The Court of Protection
In contrast, the Court of Protection is a Court dedicated to making decisions on financial or welfare matters for people who do not have the mental capacity to make such decisions at the point at which they need to be made. On the Government website, information is provided about matters for which the Court of Protection is responsible. These include:
- deciding whether someone has the mental capacity to make a particular decision for themselves;
- appointing deputies to make ongoing decisions for people who lack mental capacity;
- giving people permission to make one-off decisions on behalf of someone else who lacks mental capacity;
- making decisions about a Lasting Power of Attorney and considering any objections to their registration;
- considering applications to make statutory wills or gifts; and
- making decisions about when someone can be deprived of their liberty under the Mental Capacity Act.
When dealing with such matters on behalf of a person, the Court of Protection considers what is in that person’s best interests at that particular point in time by reference to certain factors set out in the MCA. This includes any past and present wishes and feelings expressed by the person and the views of their family, friends and carers, amongst other points.
If a person loses the capacity to make certain decisions for themselves and they do not have a Lasting Power of Attorney in place, which confers power on an attorney in relation to the decision which needs to be made, or any Lasting Power of Attorney which the person put in place is no longer appropriate, the Court of Protection can appoint a deputy to make decisions on their behalf.
As with Lasting Power of Attorneys, deputies can be appointed to decide a person’s property and financial affairs and/or health and welfare. The deputy would get their power to make such decisions from a Deputyship Order made by the Court of Protection. The Court of Protection can also make orders to give additional powers to an attorney who is dealing with the affairs of a donor under a Lasting Power of Attorney.
The two regimes are separate, and deputies and attorneys have both similar but different duties and responsibilities. For example, acting as a deputy is often a more formal process as deputies are required to file annual accounts if appointed to look after a person’s financial affairs. However, both regimes allow for people to assist with the management of a person’s health and welfare or property and financial affairs if they do not have the capacity to manage these matters for themselves at a particular point in time.