Being able to appoint a person to make important decisions on your behalf in the event of illness or accident can give you and your loved ones peace of mind for the future. For anyone who has already made provision for this in previous years, you may have in place what’s known as an Enduring Power of Attorney (EPA). However, the EPA preceded the Lasting Power of Attorney (LPA) that was introduced under the Mental Capacity Act 2005.
Below we look at the effectiveness and scope of EPAs and how these differ to LPAs, including whether you should now replace an existing EPA with an LPA.
What is an Enduring Power of Attorney?
Prior to 1st October 2007, when the 2005 Act came into force, an individual could use an EPA to appoint someone they trusted, typically a friend or relative, to be able to deal with their general property and financial affairs if needed. This could include giving that person the authority to make bank withdrawals, collect benefits or a pension, pay bills or even sell their home. However, following the introduction of the 2005 Act, LPAs have now replaced EPAs.
Still, even though the Enduring Power of Attorney has been gradually phased out, a properly executed EPA in the prescribed form that pre-dates the 2005 Act coming into force should still be valid — although it may not give you the same flexibility and benefits as an LPA.
How does an EPA differ to an LPA?
Both an EPA and LPA are legal documents that give another person or persons (the attorneys) the authority to make certain decisions on behalf of the appointing individual (the donor) in circumstances where the donor needs help or is no longer able to make their own decisions.
However, any existing EPA will only cover decisions about a person’s property and finances. As such, the most important distinction between an EPA and an LPA is that the LPA can also include the power for your appointed attorney(s) to make important decisions about your health and welfare. This can include things like your day-to-day care, where you should live and even life-sustaining treatment. In this way, the 2005 Act increased the range of decisions that people can authorise others to make on their behalf.
Should I replace my EPA with an LPA?
Provided any existing EPA has been properly drafted and met the legal requirements upon execution, this should still be valid. As with a Lasting Power of Attorney, a valid EPA allows an attorney to make decisions even if the donor lacks capacity to manage their own affairs.
An EPA can be used before someone loses their mental capacity with the donor’s permission. It can also be used after the donor has lost the ability to make their own decisions, as long as the EPA has been registered with the Office of the Public Guardian.
However, if you want someone to make decisions about your personal welfare in the event that you lose the ability to make your own medical and care decisions in the future, you will need to make an LPA whilst you still have the capacity to do so. You will also need to substitute any existing EPA with an LPA if you're looking to replace your appointed attorney(s), or an attorney is no longer able to act on your behalf.
By planning ahead, and by securing professional help to put in place the power for your attorney(s) to manage decisions about both your financial affairs and personal welfare, you can significantly lessen the emotional strain on your loved ones if the worst should happen.
Legal disclaimer
The matters contained herein are intended to be for general information purposes only. This blog does not constitute legal advice, nor is it a complete or authoritative statement of the law in England and Wales and should not be treated as such. Whilst every effort is made to ensure that the information is correct, no warranty, express or implied, is given as to its’ accuracy, and no liability is accepted for any error or omission. Before acting on any of the information contained herein, expert legal advice should always be sought.
