Do I need a Lasting Power of Attorney if I have an Enduring Power of Attorney?
- Making law easy for you -
Do I need a Lasting Power of Attorney if I have an Enduring Power of Attorney?
Before 1st October 2007, in order to appoint someone to make decisions regarding your property and financial affairs, it was necessary to sign an Enduring Power of Attorney (‘EPA’). An EPA is a legal document that allows the people you appoint as attorneys to make decisions on your behalf if you were not able to do so.
However, as of 1st October 2007, it is no longer possible to create a new EPA and if you wish to appoint attorneys to deal with your financial affairs, you will need to make a Lasting Power of Attorney (‘LPA’) instead.
Is my Enduring Power of Attorney still valid?
Although you can no longer create a new Enduring Power of Attorney, they are still a valid document if they have been executed correctly. Whilst you still have mental capacity, you can instruct your attorneys to act for you with your consent. For example, you can instruct the attorney to manage your money, pay your bills, sell your property or any other decisions concerning your finances. When you start to lose mental capacity (or if you have lost capacity), the EPA must be registered with the Office of the Public Guardian. You are considered to have lost mental capacity when you are unable to make decisions regarding your financial affairs as a result of a mental impairment.
Do I need an Lasting Power of Attorney?
If you have a valid EPA in place that has been executed correctly and does not need to be amended, then there is no need to set up a new Property & Finance LPA.
If you wish to amend your EPA in anyway (for example, to change who the attorneys are) or you do not have an EPA at all, you will need to sign a Property and Finance LPA. A major benefit of having an LPA rather than an EPA, is that the LPA can be registered straight away. It’s also no longer a requirement for you to have lost or start to lose mental capacity before this can be done. In practical terms, this makes life a lot easier for you and your attorneys. The LPA can be used quickly and with little notice; the attorneys can take over your finances immediately.
When the time comes to register an EPA, the application requires a number of your closest relatives to be notified. This can take a while to complete; it can take over 3 months to register an EPA. This can potentially cause delays in your attorneys being able to deal with your financial affairs for you. They will only be able to maintain your finances whilst the application is being processed, and will have to wait for the document to be registered before significant decisions (for example, selling your home to pay care fees) can be made.
In addition, it’s now also possible to create an LPA for your Health and Welfare decisions. This will allow the attorneys to make or help make decisions on your behalf regarding your medical care, life-sustaining treatment, where you live and other health and welfare decisions which are not covered by an EPA. If you have specific instructions regarding your health and welfare (for example, you do not want to be resuscitated), the Health and Welfare LPA can give your attorneys authority to discuss treatment options with your doctor and advise them of your wishes.
Contact Us
If you are looking to register an EPA or need help setting up an LPA, contact Helen Cottington on e. helencottington@rixandkay.co.uk, t. 01825 744428, or reach out to our Private Client team and we would be delighted to assist you.
