I’ve got an Enduring Power of Attorney – do I need a Lasting Power of Attorney?

Who can contest a Will

Enduring Powers of Attorney (EPAs) were documents that allowed you to nominate someone you trust (an attorney) to make decisions for you about your property and money. EPAs do not cover health and care decisions.

Only EPAs made and signed before October 1, 2007 can still be used.

When can an Enduring Power of Attorney be used?

Whilst you have ‘mental capacity’, your attorneys can use your EPA at any time provided that it is legal, it does not contain any restrictions to the contrary, and you give them permission. They might help organise your money and bills, bank and building society accounts, property and investments or pensions and benefits.

Should you start to lose mental capacity, the document must be registered before it can be used. If it contains a restriction, your attorneys may have to obtain evidence that you are losing capacity, before the document can be registered.

Once registered, the attorneys must make decisions for you in your best interests, and in accordance with any instructions you have included in the document.

How is a Lasting Power of Attorney different?

Lasting Powers of Attorney (LPAs) replaced EPAs and come in two forms: one for decisions regarding finance and property, and the other for decisions regarding health and care.

Financial decisions LPAs do the same thing as Financial decisions EPAs.

The difference is that you register your Financial Decisions LPA as soon as they are made, so there’s no delay if your attorney needs to use it. Your attorney can use the Finance LPA straight away if you give them permission.

In contrast, as noted above, your attorneys register your EPA when you start to lose mental capacity, and if there’s a restriction in the EPA, they’ll also have to get evidence at that stage from your doctor, adding a bit more delay.  The attorneys must also comply with a process of notification, ensuring the correct people are notified in priority order. They’ll have to make all reasonable attempts to notify the correct people, which could lead to further delay.

I made an EPA  – should I make a LPA for financial decisions instead?

Because the Office of the Public Guardian has limited resources, there is a lengthy delay in registering both EPAs and LPAs. In either case, the attorneys could be waiting 8 – 12 weeks for registration to be sorted. With a Financial Decisions LPA, this typically isn’t an issue because you will have made and registered it whilst in good mental health. With a Financial Decisions EPA, sometimes this is an issue – for example, if you have lost capacity very suddenly (such as in the case of an accident or stroke) and the attorneys need to quickly access to funds to pay for your care.

If you already have an EPA, it’s really up to you whether you want to take a chance that your attorney will need the EPA but it won’t be available for use – for example if they need emergency funds for care. The attorneys could apply for an urgent court order (called a Deputyship Order) in those circumstances, but it’ll still be at least a couple of weeks and it would be very expensive (at least £2,000 realistically). Some people choose to make an LPA so they have the peace of mind that it will be ready to use if it is needed.

I made an EPA  – do I also need a Health and Care Decisions LPA?

In short, 100% yes. If you don’t have this and lose mental capacity, the only option is a Deputyship Order – BUT the courts are very reluctant to grant such orders unless a specific decision needs their intervention. The Court’s view is that day-to-day care decisions are covered by provisions of the Mental Capacity Act and to make an order in most cases would be unnecessary.

Unfortunately, families often face disagreement, either between themselves or with carer organisations such as social services, as to how a person should be cared for. For example, the family might want their relative to live in assisted housing, whilst the person’s social worker may want them to live in a residential care home. In such circumstances, the only option is to apply for a court order. The family in making the application will have to notify the persons in disagreement at this stage, and those persons will typically put forward their opposing point of view. A court hearing will be necessary, and costs escalate quickly into the thousands.

In short, making a health and care LPA is a ‘no brainer’ – it saves the possibility of wasted time, stress and expense further down the line.

We offer a 1 hour free appointment at our offices or at your home address to discuss making a Lasting Power of Attorney, without obligation. At the same time, we would be happy to review your Will with you to see if it is still suitable for your needs and goals. Order our free information pack to find out more.

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