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. This may be to help you manage your affairs now or limited to allow your attorneys to make decisions for you in future if you lose 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 new EPAs since then.
If you have an EPA in place already you may be wondering whether or not you need an LPA. Often the answer to this question is no, there’s no need to replace your existing EPA if it was drafted and signed correctly and if your wishes remain the same. That’s not to say there aren’t good reasons for considering an LPA though.
1. EPAs only cover financial affairs
At the time you made your EPA it wasn’t possible to appoint attorneys to make decisions about your personal welfare. An EPA only deals with your finances and allows attorneys to make decisions about selling your home, making gifts, and managing your bank accounts and bills. To give someone legal authority to make decisions about your health, care, and life sustaining treatment you need a Health & Welfare LPA in place.
2. Creation of LPAs is more secure
The process of making an LPA is a bit 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 capacity to make the LPA and that no one is placing any undue pressure on you to coerce you into making the document or appointing them as an attorney. This provides more protection for you if later on an attempt is made to set aside your LPA on the grounds of lack of capacity, as the certificate provider would be able to verify that you have capacity at the time the document was made.
3. LPAs let you appoint replacement attorneys
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.
4. More flexibility
LPAs allow a wider 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 additional to this an LPA lets you state your preferences. These are not binding on your attorneys but 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.
5. Stronger supervision
LPAs are safer. Unless you have included a restriction in your EPA that states otherwise, your attorneys can use your EPA while you have 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.
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. Whether it is to keep your existing EPA in place but draw up an LPA for your Health & Welfare, or to replace your EPA with an LPA for Property & Financial affairs to take advantage of the stronger safeguards and flexibility.
For professional advice and support with creating an LPA, you should speak to a member of Wills Direct (members of the Society of Will Writers) on 01604 505170.