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Lasting powers of attorney

2 December 2019

Any solicitor intending to give advice about a lasting power of attorney (LPA) or act as an attorney under an LPA must be aware of the provisions in the Mental Capacity Act 2005 (MCA 2005) and the Mental Capacity Act 2005 Code of Practice (Code of Practice). Solicitors should also be familiar with the relevant guidance produced by the Office of the Public Guardian (OPG).

The practice note provides an overview of LPAs and also covers the ongoing arrangements for enduring powers of attorney (EPA). It does not deal with situations with an international element, for example, using an LPA to sell a foreign property, or a non-UK individual who wishes to make an LPA.

Legal status

This practice note is the Law Society’s view of good practice in this area. It is not legal advice.

Practice notes are issued by the Law Society for the use and benefit of its members. They represent the Law Society’s view of good practice in a particular area. They are not intended to be the only standard of good practice that solicitors can follow. You are not required to follow them but doing so will make it easier to account to oversight bodies for your actions.

Practice notes are not legal advice, nor do they necessarily provide a defence to complaints of misconduct or of inadequate professional service. While care has been taken to ensure that they are accurate, up to date and useful, the Law Society will not accept any legal liability in relation to them.

For queries or comments on this practice note contact the Law Society’s Practice Advice Service.

SRA Principles

There are seven mandatory principles which apply to all those the SRA regulates and to all aspects of practice. The principles can be found in the SRA Standards and Regulations.

The principles apply to all authorised individuals (solicitors, RELs and RFLs), authorised firms and their managers and employees. They also apply to individuals and the parts of a licensed body involved in delivering the regulated services.

Professional conduct

The following sections of the SRA Code of Conduct for Solicitors, RELs and RFLs 2019 are particularly relevant to this issue:

  • paragraphs 1.1 to 1.4 on maintaining trust and acting fairly
  • paragraphs 3.1 to 3.6 on service and competence
  • paragraphs 4.1 to 4.3 on client money and assets
  • paragraphs 6.3 to 6.54 on confidentiality and disclosure

Terminology

Must – A specific requirement in legislation or of a principle, rule, regulation or other mandatory provision in the SRA Standards and Regulations. You must comply, unless there are specific exemptions or defences provided for in relevant legislation or the SRA’s Regulatory Arrangements.

Should – Outside of a regulatory context, good practice for most situations in the Law Society’s view. In the case of the SRA Standards and Regulations, a non-mandatory provision (such as may be set out in notes or guidance).

These may not be the only means of complying with legislative or regulatory requirements and there may be situations where the suggested route is not the best possible route to meet the needs of your client. However, if you do not follow the suggested route, you should be able to justify to oversight bodies why the alternative approach you have taken is appropriate, either for your practice, or in the particular retainer.

May – A non-exhaustive list of options for meeting your obligations or running your practice. Which option you choose is determined by the profile of the individual practice, client or retainer. You may be required to justify why this was an appropriate option to oversight bodies.

Contents

  1. Introduction
    1. Who should read this practice note?
    2. What are the issues?
     
  2. Powers of Attorney
    1. Lasting powers of attorney
    2. Enduring powers of attorney
    3. Ordinary powers of attorney
     
  3. The donor's capacity
    1. Assessing capacity
    2. Where there is doubt about a donor's capacity
    3. Incapacity: the functional and time-specific test
    4. Acting in the donor's best interests
     
  4. Risk of abuse
    1. Deputyships
     
  5. Taking instructions for an LPA
    1. Verifying instructions
    2. Duty to the donor
     
  6. Drafting the LPA
    1. Choice of attorney(s)
    2. More than one attorney
    3. Guidance, restrictions and conditions
     
  7. Certificate providers
    1. Providing a certificate as a professional
    2. Providing a certificate as a 'non-professional'
     
  8. Registering the LPA
    1. Time limits for registration
    2. Notifying named persons of an application to register an LPA
    3. Verifying the registration
    4. The LPA register and disclosure of information
     
  9. Attorneys
    1. Duties and responsibilities of attorneys
    2. Delegation by the attorney
    3. Replacement attorney
    4. Solicitor-attorneys and costs
    5. Disclaiming an appointment
    6. Retirement as attorney
     
  10. LPA for financial decisions
    1. Limiting the LPA
    2. Gifts
    3. Investment business
    4. Trusteeships held by the donor
    5. Disclosure of the donor's will
    6. Money laundering
    7. Statutory wills
     
  11. LPAs for health and care decisions
    1. Scope
    2. Life-sustaining treatment
    3. Relationship with advance decisions and advance statements
     
  12. Using the prescribed LPA forms
  13. Executing the LPA
    1. Witnesses
     
  14. Relationship between the different types of LPA  
  15. Reporting suspected abuse of an LPA
  16. Enduring Powers of Attorney
    1. Duties under an EPA
    2. Solicitors acting as an EPA attorney
    3. Acting in the donor's best interests
    4. EPA Register
     
  17. Further information
    1. References
      1. Legislation
      2. Guidance
      3. Cases
      4. Websites and publications
       
    2. Further products and support
      1. Practice Advice
      2. Professional Ethics Helpline
      3. Other Law Society practice notes
       
    3. Acknowledgements
     

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