What is an Enduring Power of Attorney?

Ruby Shannon, Paralegal, Private Client

Until 1st October 2007, it was possible to make a legal document known as an Enduring Power of Attorney (EPA). An EPA allowed someone, the ‘donor’, to appoint people, the ‘attorneys’, to manage their property and finances, should they lose mental capacity.

I have an EPA, is it still valid?

EPAs were replaced by Lasting Powers of Attorney (LPAs), however, if you made an EPA before 1st October 2007, it is still valid and can be used by your attorneys to manage your property and finances. The EPA can be used before it is registered, providing that the donor has mental capacity, has given their permission for the EPA to be used and that there are no restrictions within the EPA preventing it from being used at that time. If the donor loses mental capacity, the EPA cannot be used until it has been registered with the Office of the Public Guardian (OPG).

Should I make LPAs to replace my EPA?

There are key differences between an EPA and LPAs, including some practical issues with EPAs that you may wish to consider:

• LPAs must be registered with the OPG before they can be used. They are typically registered as soon as they are made, and as a result decisions can be made immediately by the attorney/attorneys when the donor lacks mental capacity. EPAs can only be registered with the OPG by an attorney if the donor starts to lose or has lost mental capacity. The registration process lasts around 8-10 weeks but can be longer if there are objections. Whilst the donor will have full powers to act on the donor’s behalf after registration, during registration of the EPA their powers are limited to maintaining the donor and preventing loss to their estate.
• When registering an EPA with the OPG an attorney must notify the donor, any attorney not joining in the application and at least 3 prescribed relatives. Each is entitled to object to the registration. The EPA will not be registered until all matters are resolved. Under LPAs, there is no obligation for the donor to notify relatives. LPAs can therefore be attractive when there may be family disputes.
• EPAs cover property and finances only. LPAs can be put in place so that those you trust can manage your property and financial affairs and make health and welfare decisions (such as living arrangements, care and medical treatment) if you are unable to.
• LPAs allow you to appoint replacement attorneys who can step in if the primary attorneys are permanently unable to act. This was not available under EPAs, meaning that a lengthy and costly application to the Court of Protection for a deputyship may be necessary if attorneys can no longer act when the donor loses mental capacity.
• Institutions (e.g. banks) tend to prefer LPAs. LPAs have built-in safeguards, such as a requirement for a certificate provider to confirm the donor’s understanding.

How we can help

If you wish to discuss making LPAs, potentially to replace an existing EPA, or you need assistance with registering or revoking an EPA, please contact our Private Client Team.