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 help you manage your affairs now or limited to allow your attorneys to make decisions for you in the future if you lose capacity to make decisions yourself. EPAs were replaced by Lasting Power of Attorney (LPA) 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 if 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 account 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 the 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 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 attorney die or stop acting. This provides and 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 at any time. It 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 have lost capacity (you can state which) but it must be registered with the Office of the Public Guardian (OPG) before the attorney can use it.
The current 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 and 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 in creating an LPA, please call us. We are happy to help and advise.
26 January 2022
The views expressed in this blog do not in any way constitute advice and are specific to the date noted. As time passes the facts can change and readers should consult their adviser for up to date advice on any matters covered within the blog. Invest Southwest offers an initial review, which is free of charge, however long it takes. From this we will be able to confirm how we can help and give you an opportunity to decide if you would like us to. Thereafter, we will provide you with detailed recommendations and exact costs. Please note that we promise not to levy any kind of fee unless we can demonstrate a benefit to you.
