Enduring Powers of Attorney
If you’re worried about who will make important decisions if you lose the ability to make them for yourself, you can appoint someone in advance to act on your behalf.
Up until October 2007, an Enduring Power of Attorney (EPA) was required to make decisions for another person about their property and financial affairs. This has since been replaced by the Lasting Power of Attorney (LPA) – a more comprehensive and flexible document – under the Mental Capacity Act 2005.
Contact us if you want to discuss creating your LPA.
Status of Existing EPAs
A valid EPA made before October 2007 is still legitimate and legal. However, you cannot create a new EPA, or make changes to an existing one.
On top of this, EPAs only cover decisions about finance and property. One of the crucial differences between the old EPA and the new LPA is that you can make separate LPAs for health and welfare decisions, as well as finance and property.
The Health and Welfare LPA allows the person, or people, you appoint to make decisions about your healthcare, treatment and general welfare. You can have one or both types of LPA, and can nominate different attorneys for each, should you wish.
If you’d like to find out more about these two types of LPA, read our dedicated page about them here.
Benefits of LPAs
An EPA is official from the moment it is signed, unless there are restrictions written into it. Your attorney can act on your behalf at any point before registration, while you still have capacity. The EPA also only needs to be registered if you lose capacity.
This leaves people particularly vulnerable to exploitation by dishonest attorneys.
Unlike EPAs, LPAs must be registered with the Office of the Public Guardian before they can be deemed valid. This is required for both types of LPA, even if you still have capacity. And, you can only set up an LPA while you can make your own decisions, so it’s worth putting a plan in place early on.
Once registered, anyone you have chosen to notify will be made aware of your LPA. They will ensure that your attorneys are acting in your best interests.
As a further safeguard, to create an LPA, someone you trust must confirm that you are of sound mind, and you are not being pressured or forced into it. The person you choose to do this must have relevant professional skills – such as a solicitor or doctor – or be someone who is not related to you, but has known you for more than two years.
When it comes to appointing attorneys, EPAs are also very rigid. If you decided that your attorneys should work jointly, only one would need to be unable to perform their role – or no longer wish to – and the EPA would cease immediately.
The new LPA allows you to appoint replacement attorneys, which isn’t possible under an EPA. This means that if an attorney died or lost capacity, you would be able to choose someone else to take their place.
How We Can Help
The benefits, flexibility and protection offered by LPAs are all incredibly useful. If you have an EPA, it may be worth considering whether cancelling it and updating to an LPA would be worthwhile. Or, if you want to keep your valid EPA, you might also want to make a Health and Welfare LPA to cover decisions about care or treatment.
As long as you have the mental capacity to do so, you can revoke an unregistered EPA at any time. You will need to apply to the Court of Protection to cancel if your EPA is registered.