There is often some confusion about the differences between an Enduring Power of Attorney (EPA) and a Lasting Power of Attorney (LPA). Both EPAs and LPAs are documents that allow you to appoint a person to act on your behalf (as an attorney) and make decisions for you if you are unable to make decisions for yourself because you lack the mental capacity.
The way to create a Power of Attorney changed some years ago. An Enduring Power of Attorney is the old form and a Lasting Power of Attorney is the new form. It is no longer possible to create Enduring Powers of Attorney, but existing ones can still be used and registered. If you do not have a Power of Attorney in place then you will now need to create a Lasting Power of Attorney.
What should you do if you have already made an Enduring Power of Attorney?
An EPA made before 1st October 2007 can still be used and registered. You can continue to rely on your EPA if you created it before the rules changed.
Why Create Lasting Powers of Attorney if you already have an Enduring Power of Attorney?
However, you may wish to consider cancelling your Enduring Power of Attorney and creating new Lasting Power of Attorneys. Lasting Powers of Attorney are more comprehensive and they have more safe-guarding procedures than an Enduring Power of Attorney. They allow you to include specific instructions and preferences about how you would like your attorneys to make decisions for you if you ever lose mental capacity. You can also choose different people to act as your attorney for health and welfare matters, and for your property and financial affairs.
What can an Attorney do under an EPA and an LPA?
Another notable difference is that an Enduring Power of Attorney is limited to dealing with your financial affairs. Your attorney under an Enduring Power of Attorney would not be able to make decisions about your health and welfare if you ever lost capacity.
There are two different types of Lasting Powers of Attorney; one that allows your attorney to make decisions in about property and financial affairs, and one that allows your attorney to make decisions about your health and welfare.
People often think that the next of kin has the right to make decisions about your health and welfare if you are incapable of much such decisions for yourself. A next of kin does not have the same legal authority as an attorney, which is why it is really important to consider creating a Lasting Power of Attorney for your Health and Welfare. This will allow your family and/or friends to make decisions about the treatment you receive rather than the doctors, nurses, carers and social workers making decisions that might be inconsistent with what you would want to happen.
What should you do if you have been appointed to act as someone’s attorney under an Enduring Power of Attorney?
If you have been appointed to act as someone’s attorney under an EPA created before 1st October 2007 then your appointment is valid.
The main difference between EPAs and LPAs is that an LPA must be registered before it can be used whereas an EPA can be used by the attorney before it is registered. An attorney must register the EPA when they believe that the person they are acting on behalf of no longer has the mental capacity to manage their own financial affairs.
If you require any assistance registering an existing Enduring Power of Attorney or to discuss making Lasting Powers of Attorney please contact our Private Client Department on 0161 832 3304.