You might have an Enduring Power of Attorney (EPA) where you have assigned people you trust or a professional to act on your behalf. This could be to help you manage your affairs now or to permit your attorneys to make decisions for you in the future if you are unable to do so. Lasting Powers of Attorney (LPAs) replaced EPAs on 1 October 2007, so it has not been possible to create new EPAs since then. If you already have an EPA in place, you may wonder if you need an LPA. In many cases, the answer is no – there's no need to replace your existing EPA if it was drafted and signed correctly and your wishes remain the same. However, there are still good reasons to consider an LPA.
When you created your EPA, you could not appoint attorneys to make decisions about your personal welfare. An EPA only covers your finances, allowing attorneys to decide on selling your home, giving gifts, and managing your bank accounts and bills. To grant someone legal authority to make decisions about your health, care, and life-sustaining treatment, you need a Health & Welfare LPA in place.
For an LPA to be valid, it must be signed by a certificate provider. This person can confirm that you can make the LPA and that no one is pressuring you to make the document or appoint them as an attorney. Having a certificate provider offers more protection in case someone tries to challenge your LPA by claiming you lacked the capacity to make it. The certificate provider can verify that you had the capacity at the time of making the document.
Under an EPA it wasn’t possible to name replacement attorneys, so if your original attorneys could no longer act for any reason the EPA would cease. This would leave you with no one in place to make decisions on your behalf unless an application was made to the Court of Protection to appoint a Deputy. In an LPA, you can nominate replacement attorneys to step in and act if your original attorneys die or stop acting. This provides an additional safeguard for you.
LPAs allow a more comprehensive range of options for you to make your wishes known to your attorneys. 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 titled ‘instructions’, but in addition to this, an LPA lets you state your preferences. These are not binding on your attorneys but are nevertheless still useful for letting your attorneys know how you would like them to act and what you would prefer they consider when making decisions on your behalf.
Under an EPA, one attorney can act on your behalf. Should you choose to appoint more than one attorney, they must all act jointly. This means that they will all need to be involved in every decision and all sign documents. This is far from ideal for the majority of donors.
Your attorney can use the property and financial affairs LPA while you still have the ability to make your own decisions. For example, you may need someone to deal with a financial transaction while you are overseas. Likewise, in the case of mobility issues, it might be easier for someone else to go to the bank on your behalf. An EPA can only be used if you lose mental capacity.
An LPA is usually registered with the Office of the Public Guardian straightaway. EPAs are kept until needed, i.e. when the donor starts to lose the ability to manage their own affairs.
LPAs are safer. Unless you have included a restriction in your EPA that states otherwise, your attorneys can use your EPA while you have the capacity and without registering it with the Office of the Public Guardian (OPG). The EPA only needs to be registered once you have lost or are starting to lose capacity. This, unfortunately, opened EPAs up 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 while you still have capacity or only after you’ve lost capacity (you can state which), but it must be registered with the OPG before the attorneys can use it. Activating an EPA as someone is losing capacity can be confusing and stressful for the donor and the attorney, whereas with an LPA, they can all become accustomed to using the LPAs before the unfortunate day comes when they may be necessary.
An LPA is usually registered with the Office of the Public Guardian straightaway. EPAs are kept until needed, i.e. when the donor starts to lose the ability to manage their own affairs. EPAs are a minimum of 17 years old. Many of the attorneys on them will be getting older themselves or may have passed away. A review, at least, is always recommended.
EPAs cannot be changed; if they are no longer suitable, they must be cancelled and an LPA set up instead.
Unregistered: To cancel an EPA before losing mental capacity, make a "deed of revocation" stating that you are cancelling it and keep it with the EPA form. You and a witness must both sign the revocation. You or your attorneys must inform all attorneys and relevant financial providers. There is prescribing wording to use when writing the notification. D not send the EPA and revocation to the Office Of Public Guardian. It must be kept and ideally stored securely.
Registered:
There are two forms to complete COP1 & COP24 to send to the Court Of Protection. It costs £408, payable to "HM Courts and Tribunals Service."
You may need to provide evidence that you still have mental capacity. Decisions are made within 16 weeks. When the cancellation is confirmed, you can make a Property and Financial Affairs LPA.
The registration fee for both EPAs and LPAs is £82, payable directly to the OPG.
If you have an EPA in place, now is a good time to consider reviewing your planning. You can keep your existing EPA in place but draw up an LPA for your Health and welfare or replace it with an LPA for Property and financial affairs to take advantage of the stronger safeguards and flexibility.
It's important to have a Lasting Power of Attorney (LPA) or Enduring Power of Attorney (EPA) in place. Without one, your loved ones would have to go through a complex and lengthy process with the Court of Protection to manage your affairs if you become unable to do so. This could cause delays in important decisions and care arrangements. Having LPAs in place ensures that you have representation and assistance when needed.
Written with thanks to Siobhan Rattigan-Smith of the SWW Technical Team and www.gov.uk under the Open Government Licence v3.0.
