Powers of attorney(reproduced in full in appendix A)Property and affairs applicationPowers of attorneyApplications:property and affairs casesProperty and affairs applicationPowers of attorneyLasting powers of attorney:validityEnduring power of attorney:validityApplications:property and affairs cases(reproduced in full in appendix A)Property and affairs applicationPowers of attorneyLasting powers of attorneyApplications:property and affairs casesProperty and affairs applicationPowers of attorneyLasting powers of attorneyApplications:property and affairs casesProperty and affairs applicationPowers of attorneyLasting powers of attorney:administrative processLasting powers of attorneyApplications:property and affairs casesProperty and affairs applicationPowers of attorneyLasting powers of attorneyApplications:property and affairs casesProperty and affairs applicationPowers of attorneyLasting powers of attorneyApplications:property and affairs casesProperty and affairs applicationPowers of attorneyLasting powers of attorneyApplications:property and affairs casesProperty and affairs applicationPowers of attorneyLasting powers of attorneyApplications:property and affairs cases
7.93Prior to the implementation of the MCA 2005 on 1 October 2007, an EPA allowed a donor (the person who wishes to make arrangements for someone else to look after their finances if they are unable to do so in future) to appoint an attorney (or attorneys) to deal with their finances both immediately after the signing of the document and in the future, should the donor lose their capacity. An EPA could only be made to cover the donor’s financial affairs; no power was conferred by it to allow decision-making with regard to health or welfare matters.
1For more detail on EPAs and LPAs, see chapter 3 and D Lush, Cretney & Lush on Lasting and Enduring Powers of Attorney, 7th edn, Jordans, 2013.7.94To be valid, an EPA must be in the prescribed format and have been signed by all parties on or before 30 September 2007.
2Provisions relating to EPAs can now be found in MCA 2005 Sch 4. The attorneys named in an EPA are under a duty to register the document with the OPG when the donor has lost, or is losing their capacity.
7.95LPAs were introduced by the MCA 2005 and come in two varieties:
1)health and welfare; and
2)property and affairs.
The new property and affairs LPA is similar in function to the old EPA, but crucially it cannot be used until it has been registered with the OPG.
7.96The special feature enjoyed by both the EPA and LPA is that the authority conferred by them continues even after the donor has lost their capacity. All other types of power of attorney (usually referred to as a ‘general power of attorney’) are automatically revoked by the donor’s incapacity.
7.97The OPG has a range of documents available to download
3See www.justice.gov.uk/forms/opg. that can take the prospective donor through the process of making an LPA, and registering it. This is an administrative process, falling outside the scope of this book, with one important exception detailed in the bullet points below:
•The process of registration requires notification to any person named in the LPA for that purpose on a form LPA001.
4MCA 2005 Sch 1 para 6. If a person notified wishes to object to the registration of an LPA on a prescribed ground,
5MCA 2005 Sch 1 para 13(3), referring to MCA 2005 s22(3). ie most obviously, that either fraud or undue pressure was used to execute an instrument for the purpose of creating an LPA or to create a LPA,
6MCA 2005 s22(3)(a). then they must within three weeks from the date on which notice is given make an application to the Court of Protection in a form COP7 (not a COP1), and notify the OPG of their application in a form LPA008. There is no fee payable. The COP7 form will then be issued by the court; it must then be served as soon as practicable and in any event within 14 days; the COP7 form must be accompanied with a COP5 form for the person upon whom it is served to respond, and a certificate of service will be required under COP20. Taking these steps will have the effect of preventing the OPG from registering the LPA until the court has determined the application and directed the OPG to do so.
7MCA 2005 Sch 1 para 13(4). •If the person who wishes to object to the registration was not a person notified on a LPA001 form, the application is made not on an COP7 form, but on a COP1 form; the OPG must also be notified. There is a fee payable in such case (see appendix F below). This will also apply if the LPA has already been registered, but the person wishes the power to be cancelled.
7.98The Court of Protection has a range of powers in relation to determining both the validity of LPAs
8MCA 2005 s22. and their operation.
9MCA 2005 s23. The most relevant for present purposes are those related to the jurisdiction that the court exercises over the conduct of attorneys (which also extends to the conduct of attorneys under EPAs
10Under the – slightly different – provisions in MCA 2005 Sch 3 para 16.); see further paras 7.117–7.119 below.
7.99The court may determine the validity of an LPA
11MCA 2005 s22(2)(a). and if it finds that it was not properly created may order that the instrument is not registered. Other powers of the court include severing the appointment of an attorney under an LPA if there is more than one appointed. For example, if only one attorney were found to be in breach of their duties this would in itself not invalidate the appointment of any other attorney validly appointed in the same instrument.
7.100The court also has powers to require attorneys to provide accounts or other information if the donor lacks the capacity to call for these themselves,
12MCA 2005 s23(3)(a). as well as giving directions about the remuneration of a donee
13MCA 2005 s23(3)(c). or alleviating them from liability for any breach of their duty as attorney.
14MCA 2005 s23(3)(d).7.101The court also has jurisdiction to authorise gifts that fall outside of the attorney’s existing powers under the LPA, see para 7.84 above. The court’s power to revoke an LPA is discussed below at para 7.105.