Enduring Powers of Attorney versus Lasting Powers of Attorney

Some people may have an Enduring Power of Attorney (EPA) and one of the first questions that they may ask 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 in the future. However, EPAs were limited to financial assets only (property and bank accounts/investments etc). Whilst it is no longer possible to make an EPA, the more modern document is a 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 to prevent this - BUT - if the Donor does not have mental capacity – or his attorneys believe they are losing mental capacity and are becoming unable to manage their financial affairs, an EPA must first be registered before it can be used by the appointed Attorneys.

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 would rather have 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 may be advisable for them to create one. A Health and Welfare LPA can specify such things as:

• where the Donor can live
• who can visit the Donor
• what medical treatment they can have
• whether their attorneys can consent to, or refuse, "life-sustaining treatment"

For more information please contact PEACE LEGAL Solicitors on 01226 341111 and ask for Ruth Brockett or use our contact form and Ruth will get back to you.