Mental Incapacity

The changes brought about by the Mental Capacity Act 2005 will have far-reaching effects. We offer assistance and guidance in respect of:

  • Lasting powers of attorney concerning personal welfare
  • Lasting powers of attorney concerning property and affairs
  • Arranging formal assessment of capacity
  • Determining best interests
  • Undue influence
  • Appointment of deputies




Enduring and Lasting Powers of Attorney

The “Old” System
1. An Enduring Power of Attorney (“EPA”) is no longer valid unless granted prior to 1st October 2007.
The features and characteristics of an EPA can be summarised as follows:
1.1         It had to be granted on a prescribed but simple to use and relatively short form.
1.2         It could, if required, grant the Attorney(s) the ability to deal with your property and finance just as though they were you.
1.3         It does not extend to decisions about health and personal welfare.
1.4         It does not require registration with the Court of Protection until you have become, or are perceived to be becoming, incapable of managing your affairs.
1.5         Once you lose your mental capacity it is not valid unless registered.
1.6         Registration of the EPA requires notice to be given to parties concerned and normally at least three of your closest relatives.
1.7         Persons receiving notice can lodge an objection to registration with the Court of Protection.
1.8         There is a common law duty for your appointed Attorney(s) to act in your best interests.
1.9         An EPA is revocable by you at any time prior to registration.
1.10     A registered EPA can only be revoked or cancelled by the Court.
1.11     There is automatic revocation in the event of bankruptcy either on your part or on the part of your Attorney(s).
The New Regime
2. Since 1st October 2007, Enduring Powers of Attorney have been replaced by Lasting Powers of Attorney (“LPAs”) to which different and more onerous formalities apply.
2.1         There are two types of Lasting Power of Attorney, one that relates to your property and financial affairs and another that relates to your health and personal welfare.
2.2         You do not have to make an LPA at all, and if you do so you can choose whether to make either or both types of LPA.
2.3         The LPA cannot be utilised until it has been registered with the Office of the Public Guardian. The registration fee has been set at £120.00 per document.
2.4         It will be possible to make an LPA on the basis that it will not come into force until you later decide, or, if sooner, when the Attorney(s) determines that you are losing your mental capacity.
2.5         An Attorney under an LPA has a statutory duty to act in the best interests of the donor and is expected to follow guidance in a new Code of Practice under the Mental Capacity Act.
2.6         Importantly, you can decide which persons (if any) must be given notice in the event of your LPA being registered. Only the persons you nominate will have the opportunity to object.
2.7         You can on factual or prescribed grounds revoke or cancel your LPA whilst still mentally capable. Otherwise it can be cancelled or ended by the Court of Protection.
2.8         Your bankruptcy or of that of the Attorney(s) will result in revocation of the LPA, except that bankruptcy does not terminate an LPA for health and personal welfare.
2.9         An Attorney can cease acting as the attorney at any time and if no additional or replacement attorney has been appointed, then the LPA will end.