Nia Wharry, a solicitor in Charles Lucas & Marshall’s will and estate planning team, discusses forthcoming changes to powers of attorney.

At present, a person who has mental capacity can create an Enduring Power of Attorney (EPA), appointing attorneys to look after his or her finances and property and the EPA can be used if they become mentally incapable of doing so at some future date.

Many people believe the new LPA complicates procedures. Admittedly, the advantage of an EPA is that it is a very straightforward document and can be used if the donor i.e. the person making the EPA becomes mentally incapacitated. At that time, the attorneys will apply to register the EPA, although in certain circumstances, attorneys do use unregistered EPAs.

The disadvantage of an EPA is that it only allows the attorneys to deal with the donor’s financial affairs and not make decisions concerning the donor’s care. The attorney works on trust and there is nothing to stop the attorney from abusing his or her position.

Indeed there is nothing in place to ensure that the donor understood the document or has become mentally incapable, thereby requiring the EPA to be registered. Once the EPA is registered it is indicative that the donor has no mental capacity which can create an unfair stigma.

In spite of this, there is no denying that making an EPA is a simpler and shorter process.

This will remove the need for making an ‘Advance Directive’ otherwise known as a ‘Living Will’ whereby a person can make decisions now about their future care in case they become unable to make such decisions for themselves.

For the first time, this area of law is being regularised in England and Wales. Advance Directives and Living Wills have in the past been evidence of good intention but the LPA dealing with a specific care decision will be legally binding.

You can contact Nia Wharry on 01635 521212 or nia.wharry@clmlaw.co.uk