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									   Acting On A Person’s Behalf – Enduring/Lasting Power of Attorney

 Introduction
Most of us are familiar with the advantages of making a Will to
document our wishes on death. However, we often overlook the
importance of establishing a framework for our requirements should
we become incapable during our lifetime.

There are many events and illnesses which can deprive us of our
ability to manage our own affairs. Strokes, Alzheimers disease,
dementia and accidents can all leave us with impaired mental
capacity and no longer able to perform simple functions like operating
a bank account, collecting pensions or paying bills.

In such circumstances, many people incorrectly assume that our
partners or family can simply take over the responsibility.
Unfortunately, this is not the case

Unless we legally nominate a person to act on our behalf, our assets
can be frozen and will fall under the control of the Office of the Public
Guardian (OPG) and Court of Protection. Whilst the OPG provides an
important safety net for the most vulnerable it can be expensive,
frustrating and intrusive for families who were simply unaware of the
need to set up such a document.

This bulletin provides an introduction to the issues involved when
acting on a person’s behalf following the introduction of the Mental
Capacity Act (2005) and supporting Code of Practice.

 What is the Mental Capacity Act?
The Mental Capacity Act 2005 for England and Wales provides a
statutory framework to empower and protect people who may not be
able to make decisions for themselves.

The Act sets down the decision making process for individuals who
may not have capacity and enables people to plan ahead for such an

The new Act is underpinned by 5 key principles:

       A Presumption of Capacity – each adult has the right to
        make their own decisions and unless proven otherwise must
        be assumed to have the capacity to do so.

       The Right to be Supported – everyone must be given all
        appropriate help and support to make their own decisions,
        before anyone concludes that they cannot decide for
   Acting On A Person’s Behalf – Enduring/Lasting Power of Attorney

      Making the Wrong Decisions – individuals must retain the
       right to make what to others may seem eccentric or unwise

      Best Interest – anything done for someone without capacity
       must be in their best interests.

      Least Restrictive Intervention – anything done for people
       without capacity should be the least restrictive of their basic
       rights and freedoms.

Some of the key features of the new arrangements are summarised

      Assessing Lack of Capacity

       The Act sets out a single, clear test for assessing whether a
       person lacks capacity to take a particular decision at a
       particular time. The test is decision specific and seeks to
       prevent individual’s being deemed incapable as a result of a
       specific illness or medical condition.

      What is Best Interest

       The Act provides a checklist of factors that decision makers
       should use in determining best interest. Carers and family
       members have the right to be consulted and the wishes and
       feelings of the individual themselves is key.

      Decisions about Care and Treatment

       The Act enables a person providing care or treatment for
       someone who lacks capacity, to do so without incurring legal
       liability as is currently the case. A proper assessment of
       capacity and best interests will provide the guidelines in this

      Court Appointed Deputies

       Those who have not appointed an attorney currently fall under
       the control of the Court of Protection who appoint Receivers to
       take on many of the duties of the attorney. The Act replaces
       and extends this arrangement through a system of court
       appointed deputies who are able to make decisions on welfare,
       healthcare and financial matters as determined by the Court.

      A New Court of Protection

       The Court has jurisdiction for the Act and is the final arbiter in
       matters of capacity. The Public Guardian is the registering
       authority for LPAs and deputies
   Acting On A Person’s Behalf – Enduring/Lasting Power of Attorney

      Independent Consultee

       These will be provided for people who lack capacity and have
       no-one to speak for them

      Refusing Treatment

       The Act includes Statutory rules with clear safeguards so that
       people can make advance decisions to refuse treatment if they
       lose capacity in the future. The Act also sets out the
       circumstances in which advance decisions may be followed by

      New Criminal Offence

       The Act introduces a new criminal offence of ill treatment or
       neglect of someone who lacks capacity with a punishment of
       up to 5 years imprisonment.

 What is the Code of Practice?
The Code supports the Mental Capacity Act and provides information
and guidance to those working under the legislation. This includes
people caring for adults who lack capacity such as family members,
carers and professionals.

The Code describes the responsibility that these individuals have
when acting and making decisions on behalf of others.

 What is a Lasting Power of Attorney (LPA)?
It is a legal document which allows you to nominate someone (known
as the attorney) who you trust to make decisions on your behalf when
you are either no longer able, or lack the mental capacity to make
such decisions yourself.

It can only be used when it has been registered with the Office of the
Public Guardian (OPG).

 How many types of Lasting Power of Attorney are
There are 2 types of LPA.

A Property and Affairs LPA allows your attorney to make decisions
on your behalf about your property and affairs. This might range from
paying your bills and operating your bank account to collecting your
benefits and selling your property, subject to any conditions or
   Acting On A Person’s Behalf – Enduring/Lasting Power of Attorney

restrictions. Your attorney can be appointed to manage your property
and affairs whilst you have your capacity as well as when you lack
capacity but cannot make decisions about your personal welfare
unless they have also been appointed as a Personal Welfare

A Personal Welfare LPA allows your attorney to make decisions on
your behalf about your personal welfare. This might range from
deciding where you live to whether or not to give or refuse consent to
medical treatment on your behalf. These decisions can only be made
on your behalf when you lack the capacity to make them yourself. A
Personal Welfare attorney is not allowed to make decisions about
your property and affairs unless they have also been appointed as a
Property and Affairs attorney.

 Who can make a Lasting Power of Attorney?
From 1st October 2007, anyone over the age of 18 with the capacity to
do so can make a Lasting Power of Attorney and appoint one or more
attorneys to make decisions on their behalf. It is not possible to make
an LPA jointly with another person as each person must make his or
her own. It should also be noted that nobody can make an LPA on
your behalf.

It is true to say that some older people have good days and bad days
as a result of their condition. In such circumstances it is still possible
to establish an LPA providing the individual understands the issue at
the time it is executed.

If there is any doubt as to the donor’s metal capacity, the advice of a
doctor or specialist adviser may be required.

If the donor is unable to sign the document or make a mark, perhaps
because of a disability, it is still possible to execute the form by having
someone sign the form at the donor’s direction. An additional witness
is required in such circumstances.

You do not have to reside in England or Wales to make an LPA but
unless you have assets there, there may not be a need to appoint a
Property and Affairs attorney. You can however, appoint a Personal
Welfare attorney but you would need to be in England or Wales at the
time the attorney(s) needed to use it.

It is also important to note, an LPA made in England and Wales will
not be legally binding in other countries, including Scotland, the
Republic of Ireland or Northern Ireland. It would be up to the
individual institutions concerned (such as a bank) to decide whether
or not to recognise the LPA.
   Acting On A Person’s Behalf – Enduring/Lasting Power of Attorney

 What are the safeguards?
An LPA is a very powerful document and therefore it is important to
remember that the person(s) you appoint to be your attorney(s) will
have the same control you have over your money, savings,
investments and property unless you have included conditions or

You need to be confident that your chosen attorney(s) are aware of
what you want and you should be comfortable that they will make
appropriate decisions on your behalf. However, to protect the donor,
the following safeguards are in place:

      An LPA must be registered with the OPG before use
      A certificate is required to confirm, amongst other things, that
       the donor understands the purpose of an LPA and the level of
       the powers that are being given to the attorney(s)
      Persons chosen by the donor (known as named persons), are
       required to be notified prior to the LPA being registered
      Signatures of the donor and the attorney(s) require to be
       witnessed by independent people
      The donor, attorney(s) and named persons have the right to
       object to the registration of the LPA
      The attorney(s) must have regard to the Mental Capacity Act
       2005 Code of Practice

The following optional safeguards can also be used:

      Restrictions and conditions can be included in the LPA which
       are binding on your attorney(s)
      Guidance can be set out in your LPA which your attorney(s)
       should take into account when making decisions on your

 What if I already have an Enduring Power of
  Attorney (EPOA)?
The Mental Capacity Act 2005 modernised the Enduring Powers of
Attorney Act 1985 so that from 1st October 2007, it is no longer
possible to create a new EPOA. However, EPOAs which were
executed before that date, regardless of whether they have been
registered or not, continue to be valid with the result that for the
foreseeable future, there will be two systems running alongside each

If you already have an Enduring Power of Attorney, it would be
appropriate to create a Personal Welfare LPA to deal with healthcare
issues which are not covered by your existing arrangements.
Alternatively, you may wish to revoke your EPOA and establish two
new LPA’s being, Property and Affairs and Personal Welfare.
   Acting On A Person’s Behalf – Enduring/Lasting Power of Attorney

 Who can I choose to be my attorney(s)?
This is a very important decision and you should ensure you choose
somebody you know well, somebody you trust to make decisions in
your best interests and someone who is happy to take on the role.

An attorney can be a family member, friend or anybody willing to act
for you, providing they are over 18 years of age.

It is possible to appoint your spouse, partner or civil partner however,
it is important to remember that should your marriage or civil
partnership be dissolved or annulled in the future, the LPA will cease

      A condition has been included whereby your spouse or civil
       partner can continue to act as your attorney
      You have appointed a replacement attorney
      You have appointed additional attorneys to act together and

Your attorney should be an individual and not an office holder or firm.

It should also be noted that unless otherwise stated, the attorney(s)
under a registered Property and Affairs LPA will be able to make
decisions immediately, even when you have the capacity to still make
them yourself.

In a Personal Welfare LPA however, your attorney(s) are only able to
make decisions when you lack the capacity to do so, subject to any
conditions or restrictions set out in your LPA.

 What is involved in establishing a Lasting Power
  of Attorney?
To establish a Lasting Power of Attorney, you do not have to seek
legal advice. However, an LPA is a powerful document and you may
want to seek advice from someone with experience of preparing

It is necessary to use a prescribed form which can be obtained from
the Office of the Public Guardian.

An LPA has to be registered with the Office of the Public Guardian
before it can be used and a fee of £120 is payable to the Court to
register each document.
   Acting On A Person’s Behalf – Enduring/Lasting Power of Attorney

 General notes and guidance

      Professional attorneys, ie solicitors, can charge for their work.
       Individuals can also be reimbursed subject to any restrictions
       applied by the donor.

      Many individuals ask if it is appropriate to appoint an older
       person as their Attorney and whilst there is no upper age
       restriction, some caution needs to be exercised. The death of
       your Attorney, after the loss of capacity can create difficulties.
       This can be overcome by appointing more than one Attorney
       on a together and independently basis.

      Witnesses to signatures on the LPA should not be either
       Attorney or donor and it is not advisable for a spouse or partner
       to act as witness. Neither the witness, certificate provider or
       Attorney(s) should sign if they believe that the donor is already
       incapable of understanding what an LPA is and what it is
       intended to do.

      Regarding Enduring Power of Attorney arrangements, many
       people believe the document must immediately be registered
       and that it is not valid until this has been done. This is in fact
       not the case. An Enduring Power of Attorney set up prior to
       1st October 2007 only needs to be registered once the donor
       has lost their capacity or no longer wishes to deal with their
       own affairs. It is important to follow the required procedures
       and further details are available from our Helpline.

 The CareAware Service

An individual can establish an LPA themselves via the Office of the
Public Guardian or by obtaining a form from a legal stationer. You
may also choose to seek assistance of a Solicitor or Will Writing firm.

As an alternative to this, CareAware in conjunction with a specialist
Solicitor, are able to offer a postal service under which all the
documentation is prepared on the basis of the client’s instructions as
set down in a questionnaire.

The cost for this postal service is as detailed below:
Property and Affairs LPA + blank registration forms     £350
Property and Affairs LPA + completed registration forms £450
Personal Welfare     LPA + blank registration forms     £350
Personal Welfare     LPA + completed registration forms £450
Both                 LPA + blank registration forms     £700
Both                 LPA + completed registration forms £900

The above prices exclude the registration fee levied by the Office of
the Public Guardian, currently £120 per LPA document.
   Acting On A Person’s Behalf – Enduring/Lasting Power of Attorney

Cheques should be made payable to CareAware or alternatively, you
can pay by credit or debit card by calling the Helpline.

On receipt of payment, our client questionnaire booklet will be issued
in order to determine the instructions required for the completion of
the formal documentation.

The service does not constitute legal advice and whilst every care will
be taken in the preparation of the documents, CareAware do not
accept any legal liability in relation to them.

CareAware is a non profit making public information and
advisory service specialising in issues relating to funding long
term care for older people. Its objectives are to improve public
understanding and knowledge about the care system, to
reinforce the rights and choices of the individual and to assist
the public and professionals on the complex issues associated
with care provision.

                                     PO Box 8
                                     M30 9NY
                               Tel: 0161 707 1107

   The information contained in this bulletin is based on CareAware’s interpretation and
  understanding of the prevailing legislation at the time of writing. This bulletin or any part
 thereof should not be copied or reproduced without the written permission of CareAware.

                                        Edition 07/09

    C ar ing S olutions f or Ag e O ld P r oblems

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