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Lasting Powers of Attorney (LPAs) were introduced by the Mental Capacity Act 2005 from 1st October 2007 and replaced the old style Enduring Power of Attorney as a method by which one person can appoint another to make decisions in advance of losing capacity. However, an EPA executed by the person giving the power (‘the donor’) and all the attorneys before 1st October 2007 remains valid. Where attorneys have been appointed jointly and severally and an attorney has failed to execute his part of the form, the EPA will remain valid in favour of the other attorneys.
In the event that the donor is or becoming mentally incapable, the EPA must be registered with the Office of the Public Guardian. If it is not registered, the power is the voided by the supervening incapacity of the donor. Registration also provides some safeguards against misuse, as various steps must be undertaken before the Office of the Public Guardian will register the EPA.
An attorney has a duty to apply to the Public Guardian for registration of the EPA as soon as practicable once he has reason to believe that the donor is or is becoming mentally incapable.
Unlike the new Lasting Powers of Attorney, once an application is made, then until the EPA is registered, the attorney has limited but potentially very useful powers to maintain the donor and prevent loss of the donor’s estate.
Once an EPA is registered the attorney(s) have authority to act within the scope of the power, and the EPA cannot be revoked by the donor without the confirmation of the Court of Protection. The court has jurisdication to supervise, restrict, revoke or supplement the powers of attorney contained within the EPA, and in the event that the EPA is revoked, direct that a deputy be appointed. The attorney may also apply to the court for a substantial gift to be made and has standing to apply for a statutory will or for the court to exercise any other powers available to it.
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