Powers of Attorney and the Mental

Capacity Act 2005

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Powers of Attorney Types of Powers

• General Power of Attorney

• Enduring Power of Attorney

• Lasting Power of Attorney

Mental Capacity Act 2005 • A product of a major review of the

law• Who needs to comply with the Act?• The presumption of capacity• 5 Core Principles• What decisions are covered by the

Act?• Supported by the Code of Practice

General Powers of Attorney

• A document which appoints another person to act on your behalf which will last for a limited time. Eg; to act in the sale of a property if you are working abroad

Enduring Powers of Attorney • A document appointing an

attorney/attorneys to act on a person’s behalf either immediately or when they lack capacity.

• In relation to financial affairs only • Must be registered with the donot

lacks capacity• Will continue to be valid if made

prior to 30th September 2007

Lasting Powers of Attorney • What is a Lasting Power of Attorney? – a

new form of Power of Attorney brought in by the MCA

• A Legal document made by a competent person authorising attorney(s) to act on their behalf subject to any restrictions they impose

• Types of LPA – Property and Financial Affairs LPA replaces EPA/New Health and Welfare LPA

• Must be registered before it can be used – fee of £130.00 per document

• Certificate Providers Statement- who can complete?

Advance Decisions• MCA is first statutory confirmation of :• Decision to refuse life-sustaining

treatment– Must be in writing– Be signed and witnessed– State clearly that the decision applies even if

life is at risk– Must be valid and clearly applicable to current

circumstances– May also express wishes about other sorts of

treatment and name people to be consulted about that treatment

– Must be over 18 and have capacity to make the decision

• Who needs to know about the advance decision?

D pratice and Assessment of Capacity

• When we see a client we make our own assessment using the guidelines set out in the MCA

• Good practice and the Golden Rule

• How is mental capacity Assessed?– 2 stage test for capacity

• What are the implications if someone cannot make 1) and LPA 2) a Will 3) an Advance Decision

Simon Cook9 Imperial SquareCheltenhamGloucestershire GL50 1QBTel: 01242 235250Email: scc@tblaw.co

Philippa Pipe 27 Church Street Tewkesbury Gloucestershire GL20 5RHTel: 01684 299633Email: pcp@tblaw.co

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