Endur­ing Pow­ers of Attor­ney and Last­ing Pow­ers of Attor­ney are very sim­i­lar doc­u­ments but there are some key dif­fer­ences between the two.

Both doc­u­ments are designed to allow a per­son (the Donor) to appoint a trust­ed per­son (the Attor­ney) to make deci­sions for them should they lose the abil­i­ty (men­tal capac­i­ty) to make those deci­sions them­selves. How­ev­er, the way they achieve that result is very different.

Endur­ing Pow­ers of Attor­ney (EPA) exist­ed until 1 Octo­ber 2007, when they were replaced by Last­ing Pow­ers of Attor­ney. Since that date, EPAs can no longer be cre­at­ed or amend­ed. How­ev­er, EPAs that had already been cor­rect­ly signed remain valid.

An EPA cov­ers mat­ters relat­ing to prop­er­ty and finan­cial affairs. How­ev­er, it does not allow the Attor­neys to make deci­sions about care or med­ical matters.

When a per­son los­es men­tal capac­i­ty to make deci­sions about prop­er­ty and finan­cial affairs, the attor­neys must reg­is­ter the EPA before it can be used.

The EPA will be sent to the Office of the Pub­lic Guardian (OPG) for reg­is­tra­tion. As part of the reg­is­tra­tion process, they will check if the EPA is valid. If it is valid, they will mark the EPA to con­firm it has been reg­is­tered and return it to the Attor­neys. This process takes around 5 weeks to com­plete, dur­ing which time it is not pos­si­ble for the Attor­neys to make any deci­sions for the Donor.

If the OPG con­sid­er the EPA to be invalid, it can­not be used. This caus­es many prob­lems as the Donor has often lost capac­i­ty. Even if the Donor did have capac­i­ty, EPAs can no longer be amended.

The only option in this case would be to sub­mit an appli­ca­tion to the Court of Pro­tec­tion to appoint a Deputy. This is a very time con­sum­ing and expen­sive process.

Last­ing Pow­ers of Attor­ney (LPA) fol­low a dif­fer­ent process which avoids some of the dif­fi­cul­ties seen with EPAs.

Last­ing Pow­ers of Attor­ney came into being on 1 Octo­ber 2007. Two types are avail­able; Prop­er­ty & Finan­cial Affairs (P&FA) and Health & Wel­fare (H&W).

P&FA LPA are the direct replace­ment for EPAs. They give the Attor­neys very sim­i­lar pow­ers and allow the Attor­ney to make deci­sions about mat­ters relat­ing to prop­er­ty and finan­cial affairs.

The sec­ond type of LPA relates to Health and Wel­fare. As the name sug­gests, it allows the Attor­neys to make deci­sions about care and med­ical matters.

As well as intro­duc­ing the two dif­fer­ent types of Pow­er of Attor­ney, the reg­is­tra­tion process was also changed. It is now pos­si­ble to reg­is­ter the LPA imme­di­ate­ly. This means any ques­tions about valid­ly can be iden­ti­fied before the Donor los­es men­tal capacity.

Also, it means that LPA is ready to be used the same day a per­son los­es men­tal capac­i­ty and avoids hav­ing to wait an addi­tion­al five weeks for it to be reg­is­tered.

Key Points:

Endur­ing Pow­ers of Attorney

  • Cov­ers Prop­er­ty and Finances only
  • Does not cov­er Health and Welfare
  • Can no longer be created
  • Exist­ing EPA are still valid but can­not be amend­ed if defective
  • Valid­i­ty chal­lenged at reg­is­tra­tion which means prob­lems are often not iden­ti­fied until it is too late

Last­ing Pow­ers of Attorney

  • Replaced Endur­ing Pow­ers of Attorney
  • Two dif­fer­ent types: 1) Prop­er­ty and Finan­cial Affairs 2) Health and Welfare
  • Can be reg­is­tered imme­di­ate­ly which means prob­lems are inden­ti­fied at an ear­ly stage
  • Can be amended

Com­mon Prob­lems with Pow­ers of Attor­ney

No replace­ment attor­neys appointed
If the Attor­neys die or can­not act (e.g. they lose men­tal capac­i­ty) the EPA becomes unus­able if replace­ments have not been appoint­ed

Hus­band and Wife appoint each oth­er as Attorney
Once one par­ty dies, the sur­viv­ing person’s EPA is ren­dered unus­able unless they have appoint­ed replace­ment attor­neys. This also applies if one par­ty los­es men­tal capac­i­ty

Attor­neys appoint­ed joint­ly and one Attor­ney dies or los­es men­tal capacity
Once one Attor­ney dies or los­es men­tal capac­i­ty, the oth­er Attor­neys are unable to act. This does not apply if the Attor­neys are appoint­ed Joint­ly and Sev­er­al­ly

EPA signed after 1 Octo­ber 2007 (or not signed at all)
The EPA is invalid and a Last­ing Pow­er of Attor­ney must be cre­at­ed. If the Donor does not have men­tal capac­i­ty, an appli­ca­tion must be made to the Court of Pro­tec­tion to appoint a Deputy.

To arrange a dis­cus­sion about EPAs & LPAs, please get in touch with Paul Clark on 01625 523988 or mail@​JBGass.​com