You may have an Enduring Power of Attorney (EPA) in which you have appointed people you know and trust, or a professional, to act as your Attorney(s). This may be to help you manage your affairs now OR limited to ONLY allow your attorneys to make decisions for you in future IF you lose your mental capacity to make decisions yourself.
EPAs were replaced by Lasting Powers of Attorney (LPAs) from 1st October 2007, so it has not been possible to create a new EPA since then.
If you have an EPA in place already, you may be wondering whether you also need the more up-to-date LPA. Often the answer is NO as there is no need to replace your existing EPA if it was created and validated correctly, and your wishes have remained unchanged since. That is not to say that there are no other good reasons for considering an LPA also.
EPAs only Cover Financial Affairs
At the time you made your EPA, it was NOT possible to appoint Attorneys to make decisions regarding your personal health and welfare. An EPA ONLY deals with your finances and allows attorneys to make decisions about matters such as selling your home, making gifts, managing your bank accounts and bills. To give someone legal authority to make decisions about issues such as your health, care, and life sustaining treatment, you ALSO need a Health & Welfare LPA in place.
Creation of LPAs is More Secure
The process of making an LPA is more involved as there are more safeguards in place. For an LPA to be valid, it must be signed by a Certificate Provider. This is a person who can confirm that you have mental capacity to create the LPA and that no one is placing any undue pressure upon you to coerce you into creating the document or appointing them as an Attorney. This provides more protection for you if an attempt is later made to set aside your LPA on the grounds of your lack of mental capacity. The Certificate Provider would then be able to verify that you had mental capacity at the time the LPA document was created.
LPAs Allow you to Appoint Replacement Attorneys
Under an EPA, it was not possible to name replacement (substitute) Attorneys, so if your original Attorneys could no longer act for any reason, then the EPA would cease. This would leave you with no one to make decisions upon your behalf unless an application was made to the Court of Protection to appoint a Deputy after you have lost your mental capacity. This is very often an expensive and time-consuming process as you can no longer agree to any decision-maker being appointed upon your behalf.
In an LPA, you can nominate a replacement (substitute) Attorney or Attorney(s) to step in and act if your original primary choice Attorney(s) dies/die or stop acting for any reason. This provides a valuable additional safeguard for you.
More Flexibility
LPAs allow a wider range of options for you to make your wishes known to your Attorney(s). Under an EPA, you could include restrictions on how your Attorneys can make decisions, or what they can make decisions about. This is still present in an LPA, now known as ‘Instructions’, but in addition to this an LPA also allows you to confirm your preferences. These are not binding upon your Attorney(s) but is nevertheless still useful for letting your Attorney(s) know how you would like them to act and what you would prefer they consider when making decisions for you.
Stronger Supervision
LPAs are safer than EPAs. Unless you have included a restriction in your EPA that states otherwise, your Attorney(s) can use your EPA whilst you maintain your mental capacity, even if the document is yet to be registered with the Office of the Public Guardian (OPG). The EPA only needs to be registered once you have lost or are starting to lose mental capacity. This unfortunately exposed EPAs to abuse by unscrupulous Attorneys and was part of the reason that LPAs were introduced to replace them.
An LPA for financial affairs can be used either whilst you still maintain mental capacity, or only after you’ve lost it (you can state which) but the document must be registered with the OPG before any Attorneys can use it.
The registration fees for both EPAs and LPAs are £82, payable directly to the OPG.
If you do have an existing EPA, then now is a good time to consider reviewing your planning. Whether this is to retain your existing EPA and draw up an LPA for your Health & Welfare only, or to replace your EPA with an LPA for Property & Financial affairs to take advantage of the stronger safeguards and flexibility.
For more information WITHOUT fear of consultation fees or obligation, please visit our Power of Attorney page.
TRF Wills (TRF) was created by Michael Cotterill in 2005. He is a member of the Society of Will Writers and registered with the Information Commissioner’s Office.