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.
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