On occasion the heirs we trace are elderly, prompting concern amongst their families that their financial affairs are looked after properly. We would always recommend that you contact a solicitor or financial adviser whenever you are concerned about the financial future of elderly relatives. If you are concerned about the future mental health of an heir, it may be appropriate for them to appoint an attorney under a Lasting Power of Attorney (LPA).

Mental Capacity Act (MCA) 2005

The MCA introduced a new type of power of attorney – a Lasting Power of Attorney. Existing Enduring Powers of Attorney which may have been made, remain valid, however it is no longer possible to make one.

LPAs allow a person to delegate two types of decisions to an Attorney, someone they trust to make decisions on their behalf:-

• those matters relating to their personal welfare, including healthcare and medical treatment; and   

• decisions about their property and financial matters.

The attorney will act in the heir's affairs as they would wish, and in the case of financial LPAs,  the heir need not have become mentally impaired for it to be activated. The power of attorney may give either a general power or limit that power to certain matters, and it is possible to delegate this power to a number of people.

The Lasting Power of Attorney does not need to be registered immediately with the Office of the Public Guardian, however it has no legal standing until it is. Since the main purpose of an LPA is to carry on in accordance with the wishes of its donor, it ought really be done while the heir still has full decision-making capacity – and once it is registered, (which may take some weeks), it is ready to be used as soon as it is required.

Protecting vulnerable people

The five principles by which the Mental Capacity Act 2005 aims to protect and empower vulnerable people are as follows:

• The fact that every adult has a right to make their own decisions under the presumption of capacity (unless it can be proved otherwise);

• The right for individuals to be supported to make their own decisions;

• The right to make our own decisions includes the right to make what might be seen as eccentric or unwise decisions;

• The requirement for anything done on behalf of people without capacity to be in their best interests taking into account their wishes and feelings and if possible, including them in the decision making process;

• The rule that anything done for or on behalf of someone without capacity, ought to be done in the least restrictive way in their affairs.

Peace of Mind

The process is quite long due to the extensive notes provided although relatively straightforward and ensures that the heir's affairs will be looked after by someone acting in their interests. In addition solicitors are often very helpful in explaining any questions you might have once the completion of the forms has been started.

The main purpose of LPAs is to ensure that an attorney does not do anything unnecessary or selfish with the property or assets, or welfare of the person they are protecting.


Please note

It must be emphasised that neither Fraser & Fraser, nor the staff at the Office of the Public Guardian are permitted to advise as to whether the creation of an Lasting Power of Attorney is appropriate for any particular case, or as to how the Act rules or regulates affairs in any particular circumstance.

Individual legal advice should be obtained from a solicitor or legal advice centre.