01/11/2007
The New Law Relating to Powers of Attorney
A Power of Attorney is a legal document whereby a person (the Donor) gives another person or persons (the Attorney) the power to take decisions with regard to their financial affairs and/or their health and personal welfare.
The law relating to Powers of Attorney has been radically overhauled under the Mental Capacity Act 2005. The Mental Capacity Act has 5 key principles:-
1.Every person has a right to make their own decisions and are assumed to have capacity unless proved otherwise;
2. Every person should be supported and encouraged to make their own decisions if possible and to communicate those if necessary – before it can be assumed they do not have capacity;
3. The making of what is an unwise decision does not mean that they can be treated as if they lack capacity to make that decision;
4. If someone lacks capacity any decision made on their behalf must be in their best interests; and
5. Whatever the decision it should restrict the basic rights and freedoms of the person as little as possible.
As from 1st October 2007 under the Act an Enduring Power of Attorney (EPA) can no longer be granted and they have been replaced by Lasting Powers of Attorney (LPA’) . EPAs that existed prior to 1st October, however, will remain effective.
LPAs allow individuals to appoint Attorneys to look after their property and financial affairs (a Property and Affairs LPA) and also to make health and personal welfare decisions (a Personal Welfare LPA). Unlike an EPA the LPA will only be effective if the Donor does not have mental capacity and allows the Donor to make advance decisions about their welfare e.g. decisions about future medical treatment. The Attorney can only use the LPA after it has been registered with the Office of the Public Guardian.
The Act does not alter the Law relating to an Ordinary Power of Attorney which is usually created for a set period of time in cases where the Donor is going abroad or is unable to act for some other reason and wishes someone else to have the authority to act on his or her behalf. However an Ordinary Power of Attorney will usually end either at a specified time or upon the request of the Donor at any time and will automatically be revoked if the Donor loses mental capacity. There is no requirement for an Ordinary Power of Attorney to be registered under the Act.
The Act also introduces a new criminal penalty for those who ill-treat or neglect anyone who lacks capacity with a sentence of up to 5 yrs imprisonment.
Ruth Drew-Edwards is a Legal Executive and works in the Probate Department at the Pontypool office of Watkins and Gunn solicitor and may be contacted on 01495 768936 |
|
