Should you replace your Enduring Power of Attorney with a Lasting Power of Attorney?

Enduring Powers of Attorney (EPAs) were replaced by Lasting Powers of Attorney (LPAs) in October 2007.  Both an EPA and a Property and Finance LPA allow you to nominate one or more people to act as your attorney. The attorneys can then help you make decisions or make them on your behalf if you lose capacity.

An EPA allows your Attorneys to make decisions regarding your property and finances only, whereas there are two types of LPAs; one for property and finances and another for health and welfare decisions.  

EPAs are still valid but they can not be amended and new EPAs can not be created.  However, it may be worth considering updating your EPA to an LPA if your circumstances have changed since putting your EPA in place.  

LPAs have several advantages over EPAs.  

One benefit of an LPA is that it must be registered with the Office of the Public Guardian (OPG) before it can be used.  Most people choose to register it as soon as it has been prepared which means that the Property and Financial LPA is ready to use both before and after you have lost mental capacity.  It is important to note that the process to register a LPA is taking between 3-4 months hence our advice to ensure the documents are registered and immediately available for use in the future.  Furthermore, a Health and Welfare LPA can only be used once the donor has lost capacity. 

An EPA, on the other hand, can be used by an attorney without it being registered, while the donor has capacity.  It only needs to be registered when the donor loses or starts to lose capacity.  While the document is being registered with the OPG, which can often take several months, the attorney will not be able to make financial decisions on behalf of the donor, just when it might be most needed. 

It is also worth bearing in mind that if there are problems with the EPA, this may only come to light when the document is registered.  If the EPA is then found to be invalid, it is likely that the donor will not have the capacity to make a new LPA in its place.  Consequentially, an application for a Deputyship Order at the Court of Protection will be required, which is time consuming and expensive, not only on the initial application, but through the lifetime of the individual.

LPAs are also more detailed. They allow you to name replacement attorneys and to state preferences, rather than instructions only, which can provide guidance for your attorneys without fettering their discretion.

Health and Welfare LPAs

A Health and Welfare LPA allows you to appoint individuals to make decisions about your health and welfare in the event you were incapable of making those decisions yourself (if for example you were diagnosed with Alzheimer’s.)  Within the document you can decide whether your attorneys can make life sustaining treatment decisions on your behalf.  If you do not have this document, then anyone who is seen to be acting in your interests has the ability to make “best interest” decisions on your behalf.   This could result in potential conflict between family members, social services and so on.

There are more safeguards in place in the creation of LPAs too.  As mentioned above, they must be registered so the OPG has a record of the LPAs in use.  A Certificate Provider is also required to sign the document.  This is somebody who confirms that you have capacity and understand the nature of the document, and that you are not acting under duress.

How we can help

If you would like to update your EPA to a Property and Finance LPA or would like to execute a Health and Welfare Lasting Power of Attorney, please get in touch with one of our Private Wealth Team at Moore Barlow, who will be happy to assist.