Many people still have an old-style Enduring Power of Attorney (EPA). Lifetime Planning and Wills specialist, Sarah Loveless, explains the difference between an EPA and a Lasting Power of Attorney.
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When the Mental Capacity Act 2005 came into force on 1st October 2007, it replaced Enduring Powers of Attorney (EPAs) with Lasting Powers of Attorney (LPAs). However, EPAs made before 1st October 2007 remain perfectly valid, and a large number remain in existence.
What is an Enduring Power of Attorney?
An EPA is a legal authority granted to one or more people (attorneys) by a mentally capable person, to act on their behalf in property and financial matters should they lose mental capacity. If and when they lose capacity, the EPA must be registered with the Office of the Public Guardian before the attorneys can act. After that, the EPA can be used to manage the person’s financial affairs without the need to apply to the Court of Protection.
What is a Lasting Power of Attorney?
There are two types of LPA. One is broadly similar to an EPA, giving authority to your attorneys to make decisions regarding your property and financial affairs. The other provides authority to your attorneys with regard to decisions relating to your personal health and welfare. You can decide to make one or both types of LPA. EPAs cannot authorise your attorneys to make decisions concerning your health and welfare.
LPAs are also more flexible than EPAs. For example, in a Property and Financial Affairs LPA you may decide to authorise your attorneys to act with immediate effect, even though you still have mental capacity.
Also, unlike an EPA, an LPA must be registered immediately, not after you lose capacity. However, unless you state otherwise, your attorneys will still need to establish that you have lost mental capacity before they are allowed to make decisions on your behalf.
Before it can be registered, an LPA requires a Certificate Provider to confirm that:
- you currently have mental capacity; and
- you understand what an LPA does; and
- you are not being put under pressure by anyone else to make the LPA.
The Certificate Provider can be a medical or legal professional or somebody who is not related to you but has known you for at least two years.
What happens if you lose mental capacity and do not have an LPA or EPA?
In the absence of either an LPA or EPA, if you lose the ability to manage your own affairs, it is very likely that the Court of Protection will need to become involved.
Can I cancel my EPA?
An unregistered EPA can be cancelled at any time by signing a deed of revocation. However, this is only possible if you retain mental capacity. A registered EPA can only be revoked by the Court of Protection.
Can I replace my EPA with an LPA?
Provided you have mental capacity, you can replace your EPA with an LPA at any time. Alternatively, you can retain your EPA, but in addition, make an LPA for health and welfare. However, most people choose to make both types of LPA simultaneously.