Since I wrote my article on the Mental Capacity Act 2005 (see [2007] Gazette, 17 May, 22), there have been some changes.


At the start of May, the statutory instrument for the Act was published and with it the final version of the forms to be used for lasting power of attorney (LPA). As expected, these are longer and more complex than the form currently used to make an enduring power of attorney, running to more than 20 pages.



The main change from the draft LPA concerns who may act as a certificate provider. The provider's statement now needs to be completed by either a person who has known the individual creating the LPA for two years, or by a person who 'on account of his professional skills and expertise' reasonably considers he is competent to make the judgements necessary, who is not also a relative or carer of the donor, the attorney or a relative of the attorney or carer.



The examples of persons who would have the necessary 'professional skills and expertise' given in the LPA are a healthcare professional, a barrister, solicitor or advocate, a social worker, and an independent mental capacity advocate.



Any solicitor asked to be a provider needs to see the person making the LPA, and check that person has the mental capacity to be making it, understands what the LPA does, and that no one is putting them under pressure to sign. This task should not be treated lightly and I suggest a detailed record should be kept.



Frances Mayne, Wilsons, Salisbury