Enduring Powers of Attorney v Lasting Powers of Attorney

Some people may have an Enduring Power of Attorney (EPA) and one of the first questions that might be asked is: Is this still valid? If the EPA was signed before 1 October 2007 in the correct manner, then yes, the EPA will still be valid.

Enduring Power of Attorney Background -An EPA was created to allow the Donor to appoint individuals they trust to act as their Attorneys should they lose mental capacity. However, EPAs were limited to financial assets, making it the predecessor of today’s Property and Financial Affairs Lasting Power of Attorney (LPA).

An EPA can be used before it is registered if the Donor still has mental capacity and the EPA does not have any restrictions. If the Donor does not have mental capacity, an EPA must be registered before it can be used by the Attorneys. The Attorneys would also need to register the EPA if they believe the Donor is becoming mentally incapable of managing their affairs.

Unlike LPAs, the donor could not choose who they wished to be notified of the registration of the EPA. Instead, the Enduring Powers of Attorney Act 1985 states that when an Attorney applies to register the EPA, they must notify the Donor and a minimum of three other people who should be:

• their nearest relatives; and
• any other Attorneys if they are not jointly registering the EPA

Any individual in receipt of a notice may object to the registration of the EPA.

Review

Depending on the length of time since the EPA was created, it would be advisable for the Donor to review their EPA to determine if they require an LPA.
An EPA does not grant the Attorneys any power over the Donor’s Health and Welfare. If the Donor does not have a Health and Welfare LPA, it would be advisable for them to create one.
For more information, please contact PEACE LEGAL Solicitors on 01226 341111 and ask for Ruth Brockett.