The end of September 2007 saw a frenzy in the newspapers, and in solicitors’ offices up and down the country, to complete Enduring Powers of Attorney before the final deadline on 30 September. Sarah Stowell and Judith Morris give a brief outline of the new system for Lasting Powers of Attorney, which has had more than its fair share of teething troubles.
Enduring Powers of Attorney (EPAs) have been familiar for many years now as a way of making it possible to allow a trusted friend, family member or professional to deal with the financial affairs of someone who is no longer able to manage these themselves. EPAs were far from perfect instruments, but at least they were reasonably straightforward to make, and reasonably straightforward to use. With the introduction of Lasting Powers of Attorney (LPAs), no new EPAs could be made after 30 September 2007. Those that have already been signed remain valid however.
If you missed the deadline for an EPA, it is now possible to sign a Financial LPA instead. This would enable decisions on financial matters to be made on your behalf if you were ever to lose mental capacity. The new LPAs are much longer documents than the old EPAs were, however, and there has been much publicity about unacceptable delays at the Office of the Public Guardian when applying to register an LPA (though that has now improved).
The new LPA regime does have the significant merit that it introduces a wholly new kind of lasting power. This new power is a Personal Welfare LPA. It enables the chosen attorney to deal with medical, health and personal decisions if the person who gives the power were ever to lose mental capacity and be unable to make those decisions themselves. This is quite separate from any appointment of an attorney for financial affairs and it might well be that the individual who would be suitable for one role would be less suitable for theother, so that two different people, or sets of people, can be appointed for each task. A Personal Welfare LPA can also be signed alongside an existing EPA for financial affairs.
It is also possible, as well as or instead of giving a Personal Welfare LPA, to make a legally binding Advance Decision to refuse certain medical treatments. This can also be used to give general guidance about any particular wishes on health and personal welfare matters – guidance which medical professionals will legally be obliged to take into account, though they cannot be compelled to follow it.
In the past the question was relatively simple: whether or not to sign an EPA for financial affairs. There is now a ‘menu’ of choices, with the ‘mix and match’ possibilities offered by two kinds of LPA, and Advance Decisions as well. Moreover because the process of signing the new LPAs is more complicated than the old EPA route, some clients may prefer, once they have looked into it, to make a positive choice to do nothing for now and accept that it would be necessary to go to the Court to ask it to appoint a deputy to manage affairs if the need ever arose. This does need to be a positive choice, however, not the result of inertia, as it has drawbacks.