Signing An Enduring vs Lasting Power Of Attorney
“Signing An Enduring vs Lasting Power Of Attorney” Wills and Probate Solicitor Keith Baldock-Grimes discusses in his latest Timms blog.
What Is An Enduring Power Of Attorney?
An Enduring Power Of Attorney (EPA) is a relatively simple document appointing another person (an attorney) to manage the property and financial affairs of another (the donor). Since the 1st October 2007, it is no longer possible to make an EPA as they were replaced by Lasting Power of Attorney (“LPA”) for Property and Financial Affairs. Enduring Powers of Attorney signed before the 1st October 2007 are, however, still valid.
Like a Lasting Power Of Attorney (LPA) for Property and Financial Affairs, an EPA can continue in force after the person granting the Power of Attorney loses capacity.
The Differences Between An LPA and EPA?
Registration of an EPA can only take place once an attorney has reason to believe that the donor has lost or is losing their capacity and an EPA can still be used even though it has not been registered. An attorney is under an obligation to register an EPA as soon as they have reason to believe that the donor has lost or is losing capacity. Whilst the registration process is taking place, the attorney can only use the Power of Attorney for very limited reasons:
- To maintain the donor
- To prevent loss to their estate
- To maintain dependents
An LPA does not need to be registered at the time it is created but it cannot be used until it is registered, whether the donor has capacity or not.
Do I Need An LPA If I Already Have An EPA?
Since the 1st October 2007, a donor has the additional option of taking out a Health and Welfare LPA, which allows the attorney to make decisions about care and medical treatment if the donor has lost capacity. Financial Lasting Powers of Attorney are far more flexible and comprehensive than an Enduring Power of Attorney. For instance, with a Lasting Power of Attorney you can include replacement attorneys, whereas with an Enduring Power of Attorney you could not. If you make a Lasting Power of Attorney, you can choose whether you wish for it to be used for physical incapacity as well as mental incapacity.
The Benefits Of Revoking An Enduring Power Of Attorney?
If you already have an Enduring Power of Attorney, there can be benefits in revoking it and creating a new Lasting Power of Attorney. The Enduring Power of Attorney previously created will be more than 12 and a half years old and may well be out of date.
One or more of the attorneys may have died or have lost capacity themselves or, for some other reason, may no longer be suitable to be your attorney. It may be that at the time you made the Power of Attorney your children were young, but they may now be adults and would be the best people to be your attorneys.
Using a Lasting Power of Attorney means that you could include replacement attorneys in case any of the main attorneys die.
Another benefit with a Lasting Power of Attorney is that you can register it now, so that if you become mentally incapable, there will not be a gap whilst you are registering the Enduring Power of Attorney when you can only use it in very limited ways. There is also a set procedure to follow in registering an Enduring Power of Attorney which includes handing a copy of the notice to the person who is losing capacity and also serving notice on certain family members.
It is not unusual for clients to decide to replace an Enduring Power of Attorney with a new Lasting Power of Attorney for property and financial affairs and, at the same time, make a health and welfare Power of Attorney. By creating a new financial Power of Attorney now, future problems for your family can be avoided.
To Summarise
To summarise, an Enduring Power of Attorney is still likely to be valid but could well be out of date. It should certainly be reviewed, and consideration given to a new Lasting Powers of Attorney, both financial and health and welfare. If the donor has already lost capacity it will, of course, be too late to do so.
How Can We Help?
If you require any further information regarding Signing An Enduring vs Lasting Power Of Attorney, or any other Wills and Probate question or query, please do not hesitate to contact me on 01283 214 231 or via email at k.baldock-grimes@timms-law.com. Alternatively, you can visit the Wills and Probate section of our website here.
March 2022