The concept of 'Power of Attorney'
its simplest form, a Power of Attorney is a legal
document whereby you give someone else the power to act
on your behalf (normally in a specific transaction).
long as you are well and in control of things everything
is fine. The problems arise if you lose ‘mental
capacity’ due to e.g. an accident, injury, a stroke,
progression of an illness or other causes.
that happens, all simple (less formal) ‘Powers of
Attorney’ automatically become invalid - and nobody may
be able to make significant decisions on your behalf,
even if that is what you would have wanted.
such situations the only option is for your relatives,
friends (or others who may need to act on your behalf)
to apply to the Court of Protection which in due
course will appoint somebody that can make the necessary
Court of Protection (COP) is a relatively new
institution and was created under the Mental Capacity
Act 2005 to makes decisions, and appoints other people
to make decisions, for people who lack the capacity to
do this for themselves.
These decisions relate to the property and affairs, and
healthcare and personal welfare of adults (and
occasionally children) who lack capacity.
application to the Court of Protection can be a
cumbersome, stressful and time-consuming experience and
can cause vital delays in situations where the need for
action is most urgent.
avoid such a situation of 'limbo' a formal legally
binding form of ‘Power of Attorney’ is needed. In the
past these were called 'Enduring Powers of Attorney'
Although existing EPAs will continue top be valid all
new ‘Powers of Attorney’ will be classified as 'Lasting
Powers of Attorney' or LPAs, and have a wider
remit than the older EPAs did.
Lasting Power of Attorney lets you appoint someone to
make decisions about your welfare, money or property but
can take up to nine weeks to get registered.
is important to understand that an LPA cannot be
used until it is formally registered with the Office of
the Public Guardian which is the ‘executive’ arm of the
Court of Protection.
Attorney(s) that you appoint in your LPA have a quite
wide-ranging discretionary powers and can make decisions
for you when or if you no longer wish to or if/when you
should lose the mental capacity to do so.
The benefits of a Lasting Power of Attorney
Lasting Power of Attorney will enable you to decide and
plan how your health, wellbeing and financial affairs
are looked after and allows you to plan, in advance, the
decisions you want to be made on your behalf should you
lose capacity to make them yourself.
Importantly, an LPA also allows you to appoint the
people that you want to make these decisions and
stipulate how you want these people to make the
Having a Lasting Power of Attorney is a safe and
sensible way of maintaining control over decisions made
for you due to a number of reasons:
1) It has to be registered with the Office of the
Public Guardian before it can be used
2) You can choose the person(s) that will provide
the 'certificate' confirming that you understand the
significance and purpose of what you’re agreeing to
3) You can choose who gets told about your Lasting
Power of Attorney when it is registered (so they have an
opportunity to raise concerns)
4) Your signature and the signatures of your chosen
attorneys must be witnessed
5) Your chosen attorney(s) must follow the Code of
Practice of the Mental Capacity Act 2005 and act in your
6) The Office of the Public Guardian provides
helpful support and advice
should note that there are two different types of
Lasting Power of Attorney:
is the Health and Welfare Lasting Power of
Attorney and the other is the
Property and Financial Affairs Lasting Power of
Attorney. A brief description of both and their purpose
is given below:
Health and welfare Lasting Power of Attorney
health and welfare Lasting Power of Attorney allows you
to choose one or more people to make decisions for
things such as medical treatment. A health and welfare
Lasting Power of Attorney can only be used
if you lack the ability to make decisions for yourself.
Property and financial Affairs Lasting Power of Attorney
Property and Financial Affairs Lasting Power of Attorney
lets you choose one or more people to make property and
financial affairs decisions for you.
This could include decisions about paying bills or
selling your home. You can appoint someone as an
attorney to look after your property and financial
affairs at any time.
can also include a condition that means that the
attorney can only make decisions when/if you lose the
ability to do so yourself.
an LPA can transfer quite wide-ranging decision-making
powers to others it is recommended that you seek
suitable independent, professional advice before
creating such a legally binding document.