Register of lasting powers of attorney and deputies(reproduced in full in appendix A)Public GuardianOffice of the Public Guardian:register of lasting powers of attorney and deputiesOffice of the Public GuardianLasting powers of attorney:register ofDeputies:register ofPublic GuardianOffice of the Public Guardian:register of lasting powers of attorney and deputiesOffice of the Public GuardianLasting powers of attorney:register ofDeputies:register ofPublic GuardianOffice of the Public Guardian:register of lasting powers of attorney and deputiesOffice of the Public GuardianLasting powers of attorney:register ofDeputies:register ofPublic GuardianOffice of the Public Guardian:register of lasting powers of attorney and deputiesOffice of the Public GuardianLasting powers of attorney:register ofDeputies:register ofPublic GuardianOffice of the Public Guardian:register of lasting powers of attorney and deputiesOffice of the Public GuardianLasting powers of attorney:register ofDeputies:register ofPublic GuardianOffice of the Public Guardian:register of lasting powers of attorney and deputiesOffice of the Public GuardianLasting powers of attorney:register ofDeputies:register ofPublic GuardianOffice of the Public Guardian:register of lasting powers of attorney and deputiesOffice of the Public GuardianLasting powers of attorney:register ofDeputies:register ofPublic GuardianOffice of the Public Guardian:register of lasting powers of attorney and deputiesOffice of the Public GuardianLasting powers of attorney:register ofDeputies:register ofPublic GuardianOffice of the Public Guardian:register of lasting powers of attorney and deputiesOffice of the Public GuardianLasting powers of attorney:register ofDeputies:register ofPublic GuardianOffice of the Public Guardian:register of lasting powers of attorney and deputiesOffice of the Public GuardianLasting powers of attorney:register ofDeputies:register ofPublic GuardianOffice of the Public Guardian:register of lasting powers of attorney and deputiesOffice of the Public GuardianLasting powers of attorney:register ofDeputies:register of
20.5The MCA 2005 updated the law with regard to the provisions that can be made by an individual to appoint a decision maker (attorney) to make certain decisions on their behalf should they lose the capacity in the future.
1See also chapter 7.20.6Prior to 1 October 2007 an enduring power of attorney (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. The scope of an EPA was limited to financial affairs. To be valid, the EPA must be in the prescribed format and have been signed by all parties on or before 30 September 2007.
20.7An EPA does not need to be registered to be used, although the attorneys named in the document are under a duty to register the document with the OPG when they believe that the donor has lost, or is losing their capacity.
2Enduring Powers of Attorney Act 1985 s4(2).20.8Properly created EPAs are still valid, although the authors are aware of considerable anecdotal evidence that banks and other financial institutions refuse to acknowledge these documents unless they are now registered.
20.9From 1 October 2007 the MCA 2005 replaced EPAs with lasting powers of attorney (LPAs), of which there are two varieties:
•property and affairs – which covers the donor’s financial matters; and
•health and welfare – which allows a donor to nominate attorney(s) to take decisions about their future medical treatment, care and other related matters if they lost the capacity to do so themselves.
20.10A 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. The special feature enjoyed by both EPA and LPA is that the authority conferred by them continues after the donor has lost their capacity. All other types of power of attorney will be automatically revoked by the donor’s incapacity.
20.11The process for validly entering into an LPA lies outside the scope of this work, but is the subject of detailed guidance and commentary
3See in particular Denzil Lush, Cretney & Lush on Lasting and Enduring Powers of Attorney, 7th edn, Jordans, 2013. (see also chapter 7). The OPG has a range of documents available to download that take the prospective donor through the process of making an LPA, registering it and acting as an attorney.
4See: www.gov.uk/government/publications/make-a-lasting-power-of-attorney.20.12The range of options for entering into an LPA now includes an online tool
5See www.lastingpowerofattorney.service.gov.uk. for generating a document to be printed, signed and submitted for registration. It is hoped that innovations like this will help donors to ensure that the document they create is valid and complete and thereby reduce the number of applications for registration that are returned by the OPG each year for the rectification of minor errors or omissions.
20.13LPAs are more detailed than the EPAs they replaced, and allow more scope for a donor to give specific advice to their chosen attorneys about how they want decisions made on their behalf. It is possible to place restrictions on the powers of the attorneys both in relation to finance and welfare and the donor may set out guidance for her attorneys to follow when discharging their duties. The nature of this guidance will depend upon the wishes and circumstances of the donor, but may include religious or ethical considerations, or stipulations as to specific decisions that attorneys may not take without further authority of the court (for example, to sell a property or valuable artefact). There are also specific requirements to be follow if a donor of an LPA wishes to grant the power to their attorneys to refuse life-sustaining treatment. Those who are advising a donor entering into an LPA should ensure that they make the donor aware of these options and requirements.
20.14Advisers to both donors entering into LPAs and attorneys acting under an LPA should ensure that their clients are aware of the limits to the scope of their powers under LPAs. In the authors’ experience the extent of an attorney’s authority is frequently misunderstood. There would seem to be common misunderstandings and assumptions in relation to powers to gift and invest money, as well as their options when deciding on care arrangements under a health and welfare LPA. Ensuring that all parties have clarity at the time that arrangements are made will help to avoid problems, including possibly interventions by the court, in future. Details about the court’s powers in relation to EPAs and LPAs can be found in chapter 7 (it should be noted that the OPG has the power to – and regularly does – apply to the Court of Protection to sever ineffective provisions in LPAs under provisions of MCA 2005 Sch 2 para 11
6For examples of orders made in this regard, see: www.justice.gov.uk/protecting-the-vulnerable/mental-capacity-act/orders-made-by-the-court-of-protection/lasting-powers-of-attorney.).
20.15It is also worth noting that the OPG only maintains a register of instruments for England and Wales. Arrangements for decision-making for those who lack capacity will vary significantly in jurisdictions outside England and Wales (including Northern Ireland and Scotland). See further chapter 26.