Lasting powers of attorney: when can an attorney start to act

Lasting powers of attorney: when can an attorney start to act

The attorney can only act when the LPA has been registered with the Public Guardian. The law for LPAs is different from that for EPAs (which dealt with property and financial affairs only).

An EPA must (if it is to be used) be registered when the donor loses capacity. Until then, it can be used, despite being unregistered. Of course, only existing EPAs can be used.

A health and welfare attorney can only act when the donor loses capacity. A property and financial affairs attorney can act before or after donor lacks capacity (unless the donor specifies that the attorney cannot act until he has lost capacity).

For example, a donor who has capacity but finds it difficult to get about or talk on the telephone or is out of the country for a long period of time may want an attorney to manage some or all of their affairs.

The difference in the rules about registration can potentially cause difficulties in practice when an attorney is dealing with various institutions. For example, some pension scheme administrators, who deal with attorneys appointed by scheme members who have become mentally incapacitated, have a policy that they will deal with an EPA attorney only if the EPA is registered. Others are willing to deal with an attorney under an unregistered EPA but will first contact the donor to check that he is happy for the attorney to act. This policy does not work with LPAs. If an attorney under a registered LPA contacts the administrator, the administrator does not know, without making additional enquiries, whether the donor is mentally capable or not. The administrator could potentially be dealing with a fraudulent attorney acting without the approval of a mentally capable donor.

If the donor has another registered EPA or LPA, an attorney(s) should liaise with the other attorney(s) appointed to act. If the other EPA/LPA is unregistered, the attorney should contact the OPG for advice on what steps to take. A donor may have an EPA and LPA to deal with property and financial affairs as well as one to deal with health and welfare. It is also relatively common for a donor to have made separate EPAs or LPAs to deal with business and personal interests.