As of 18th September 2023, the Powers of Attorney Act has become law for England and Wales, providing a greater legislative framework and direction around Lasting Powers of Attorney and related matters.
Background and context
Lasting Powers of Attorney (LPA) were first introduced under the Mental Capacity Act (2005), replacing what was then known as Enduring Power of Attorney (EPA).
LPA empowers the donor to make a decision about who they would want to make decisions on their behalf, should they lack capacity at some point in the future.
There are two types of LPA. These are:
- Property and Finance
- Health and Welfare
LPAs are especially important because if someone lacks capacity and there is no LPA in place, then decision-making would fall to health and/or social care professionals, as next of kin do not have the same level of legal authority or rights. However, a family member can apply for a Deputyship through the Court of Protection.
Purpose of the new Act
The purpose of the new Powers of Attorney Act (2023) is to amend elements of the Mental Capacity Act (2005) in order to improve ease of access while also taking into account the latest case law.
- Registration and notification process improved, including a new online system, while also still providing paper-based applications for those who need them.
- Statement of Attorney(s) that they understand their responsibilities under the MCA (2005) to uphold the five core principles of the Act.
- Certification of LPA remains, reducing the risk of undue influence, while also requiring the donor’s need for ‘understanding’ in order to implement an LPA. This implies that a donor should have capacity in order to assign an LPA.
- Monitoring of LPA in action clarified, especially in terms of fraud and mishandling.
- Emphasis on requiring the registration of the LPA by the donor only.
- Identity verification requirements for online procedures or otherwise, to reduce risk of fraud.
- Office of Public Guardian responsibilities have increased, including notification and objection assessment triage.
- The ability to raise objection(s) has been adjusted to allow a wider range of individuals to raise concerns.
- The remit of the new Act applies to England and Wales only, however the Act does make provisions for Scotland and Northern Ireland in order to share evidence and verify use across UK borders.
You can find the Powers of Attorney Act 2023 in full on the UK government website. For a more accessible breakdown of the changes, I do recommend the webinar walkthrough provided by Barrister Alex Keene based on the earlier consultation documents and proposals of this Act.