Claire-Marie Selwood who is a solicitor in the Wills and Probate team at Phillips explains the difference between an Enduring Power of Attorney (EPA) and a Lasting Power of Attorney (LPA).
Enduring Powers of Attorney and Lasting Powers of Attorney allow you to appoint someone you trust to help you make decisions at a time in your life when you may no longer have capacity to do so yourself.
Many people will consider choosing someone to look after their affairs in the event of an accident or illness, where they cannot make their own decisions. The person or people you choose to do this for you are known as your Attorneys.
Enduring Powers and Lasting Powers of Attorney are often thought about in later life when people are concerned about short term memory loss or dementia. The reality is that anyone can have a short-term or long-term loss of capacity at any time in their life. This could perhaps be as a result of a head injury or illness that temporarily prevents us from being fully able to deal with our own affairs.
People often ask about the difference between an Enduring Power of Attorney (EPA) and a Lasting Power of Attorney (LPA).
Both types give your chosen Attorney(s) the legal authority to make decisions on your behalf should you lose mental capacity.
Lasting Powers of Attorney replaced Enduring Power of Attorney (EPAs) on 1 October 2007, when The Mental Capacity Act (2005) came into force. The purpose was to provide a more comprehensive and flexible framework to protect people who lacked mental capacity. As such you can no longer make an EPA.
What is an Enduring Power of Attorney (EPA)?
EPAs were drawn up to give Attorneys the power to assist in making decisions about your property and financial decisions only.
Once an EPA is in place it can only be used once you have lost capacity and your Attorneys will need medical evidence such as a letter from a GP to confirm that you are no longer able to make decisions on your own.
In the event you have lost capacity. your Attorneys have to register the EPA with The Office of the Public Guardian. They also have to personally serve notice on you to confirm that they are applying to activate the EPA.
Your Attorneys can only act for you once the EPA is returned as registered from The Office of the Public Guardian.
What is a Lasting Power of Attorney (LPA)?
LPAs are more flexible than the old EPAs.
There are two types of LPA, one to help make decisions regarding your property and financial affairs and another covering your personal health and welfare. Prior to 1 October 2007 it was not possible to make an EPA dealing with health and welfare issues.
Unlike the EPAs you can apply to register the LPAs straightaway and do not have to rely upon your Attorneys to do this for you. Your chosen Attorneys would still need to demonstrate that you no longer have capacity before they can be used.
The only exception to this is that the Property & Financial Affairs LPA can be used by your Attorneys with your consent. For example, if you retain capacity but are physically unwell or, if you are out of the country and need your Attorneys to manage a financial transaction for you in your absence.
In order to make an LPA you will need a Certificate Provider. This person needs to confirm:
(a) that they currently have mental capacity;
(b) that they understand what an LPA does and;
(c) that they are not being pressured by anyone else to make the LPA.
A Certificate Provider can be a solicitor or doctor or someone who has known you for at least two years and who is not a relative.
Property and Affairs LPAs
This is the most common of the two LPAs and relates to your financial matters.
Some of the ways an LPA can be used include allowing your Attorneys to help you:
- manage your bank account
- pay bills
- buying/sell property
- make sure you have enough money to meet your daily needs
Personal Welfare LPA
These relate to decisions about health, personal welfare and where you live. This could include your Attorneys making decisions about:
- deciding where you should live (in your own home, nursing home or residential/assisted living accommodation)
- consenting to or refusing medical treatment on your behalf (including both medication and operations)
- your end of life care (including whether to consent/refuse life sustaining treatment)
This type of LPA can only ever be used if you are mentally incapable of making such decisions for yourself.
Are EPAs still valid?
EPAs that were drawn up and signed before 7 October 2007 are still valid, but remember they only cover property and financial affairs, not health and welfare.
If you have an EPA, we can review this for you. You cannot amend or update an existing EPA but they can be replaced with a new Property & Finance LPA.
Who should have an LPA?
We recommend that everybody has an LPA in place as mental capacity can be lost or diminish suddenly.
An LPA is especially important for older people as our bodies seem to be increasingly outlasting our minds. In fact, according to the Alzheimer's Society there are 850,000 people with dementia in the UK, with numbers set to rise to over one million by 2025. This is expected to soar to two million by 2051.
As mental powers reduce, attempting to deal with financial issues, can cause frustration and confusion and increase a person’s vulnerability.
An LPA can certainly provide some peace of mind for all concerned.