Lasting powers of attorney
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.
This practice note is the Law Society’s view of good practice in this area, and is not legal advice. For more information see the legal status.
Introduction
Who should read this practice note?
Powers of attorney
The donor's capacity
Risk of abuse
Taking instructions for an LPA
Drafting the LPA
Certificate providers
Registering the LPA
Attorneys
Property and financial affairs LPA
Health and welfare LPA
Using the prescribed LPA forms
Executing the LPA
Relationship between the different types of LPAs
Reporting suspected abuse of an LPA
Enduring powers of attorney
Further information
Practice notes 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, and do not necessarily provide a defence to complaints of misconduct or poor service. While we have taken care to ensure that they are accurate, up to date and useful, we will not accept any legal liability in relation to them.
For queries or comments on this practice note contact our Practice Advice Service.
SRA Principles
There are seven mandatory principles in the SRA Standards and Regulations which apply to all aspects of practice. The principles apply to all authorised individuals (solicitors, registered European lawyers and registered foreign lawyers), authorised firms and their managers and employees, and to the delivery of regulated services within licensed bodies.
Must – a requirement in legislation or a requirement 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 regulations.
Should – outside of a regulatory context, good practice, in our view, for most situations. 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 route to meet the needs of a particular client. However, if you do not follow the suggested route, you should be able to justify to oversight bodies why your alternative approach is appropriate, either for your practice, or in the particular retainer.
May – an option for meeting your obligations or running your practice. Other options may be available and which option you choose is determined by the nature of the individual practice, client or retainer. You may be required to justify why this was an appropriate option to oversight bodies.