Enduring power of attorney

Enduring power of attorney

Prior to the Mental Capacity Act 2005 coming into force in October 2007, you could appoint someone to assist with your financial affairs using an Enduring Power of Attorney (EPA). From 1st October 2007, Enduring Powers of Attorney were replaced with Lasting Powers of Attorney (LPA). You are no longer able to make an EPA, but existing EPAs are still valid.

This page explains the differences between the two; helps you to decide whether you need to make a new Lasting Power of Attorney, and helps you to register an Enduring Power of Attorney if the person who made it has lost mental capacity.

LPAs vs EPAs : overview

Lasting Powers of Attorney are a replacement for the Enduring Power of Attorney. If you made an Enduring Power of Attorney before these were replaced on 1st October 2007, it will still be valid, even if it has not been registered. Should you lose capacity (or begin to lose capacity), the Enduring Power of Attorney would then need to be registered by one of your nominated attorneys to be valid, at a cost of £82 unless you are entitled to help with the fees.  They won’t have to pay the fee if you receive certain means-tested benefits; or if your income is less than £12,000 before tax, the fee will be 50%.

An Enduring Power of Attorney only covers property and financial affairs, so you may want to consider making a Health and Welfare Lasting Power of Attorney in addition. If you only have an Enduring Power of Attorney for finance and you then lose capacity, it may be necessary to obtain a Deputyship Order regarding health and care decisions – however, the Court is typically reluctant to grant these.

Some people decide to replace their Enduring Power of Attorney with two new Lasting Powers of Attorney. The main benefits of getting both types of Lasting Power of Attorney if you already have an Enduring Power of Attorney are:

  • Enduring Powers of Attorney are registered once you start to lose capacity – Lasting Powers of Attorney are registered once they are made. If your Enduring Power of Attorney contains a restriction, it may be necessary for your Attorneys to obtain evidence before they can register the document. Once the application has been sent off, there can be a delay of 8 to 10 weeks in registering the Enduring Power of Attorney during which time it cannot be used, and this period can be extended if a family member objects. In the meantime, nobody will be able to manage your affairs.
  • Lasting Powers of Attorney allow you to better manage who makes decisions for you if you are incapacitated – you do not have to choose the same people to make finance decisions as you do to make health decisions.

Enduring Powers of Attorney can be used with your permission if they are not registered, provided that you still have capacity. Property and Finance Lasting Powers of Attorney can also be used with your permission provided that you have capacity. For example, you could choose to use either document if you are in hospital or abroad for a period of time and want someone to handle your affairs temporarily. However, few banks ensure that their staff are fully trained on Powers of Attorney and it is likely that they will be more familiar with the newer form of Lasting Power of Attorney, which can help prevent unnecessary delays.

Summary

What is the difference between a Lasting and Enduring Power of Attorney?

The main differences between a Lasting Power of Attorney and an Enduring Power of Attorney are:

You can make a Lasting Power of Attorney for both Finance and Health & Welfare - by contrast, an Enduring Power of Attorney only covers finance.

Your attorneys don't need to register the Enduring Power of Attorney until you lose capacity. They can use it (unregistered) with your permission, whilst you still have capacity. By contrast a Lasting Power of Attorney must be registered before it can be used. Once registered, a finance LPA can be used with your permission whilst you have capacity. A health LPA can only be used once you have lost capacity. 

Lasting Powers of Attorney have section which an independent person must sign to confirm that you understand what you are doing by making the document, and you are not subject to any pressure.

LPAs allow you to appoint replacement attorneys, should one of your attorneys be unable to act. By contrast, if your EPA appoints attorneys jointly and one is unable to act, the document is rendered useless.

With an LPA, you can 'notify' people when it has been registered. This is a benefit as people have formal notice of the existence of the LPA.

With an LPA, you have more flexibility as to what can be included. You can also choose different people to make finance decisions and health decisions if you want to.

With an EPA, your attorneys only have a common law duty to act in your best interests. With an LPA, your attorneys must act in accordance with the provisions of the Mental Capacity Act 2005.

Banks and other institutions may be unfamiliar with the older style Enduring Powers of Attorney and they may cause delays.

How do I register an Enduring Power of Attorney?

Note that this advice concerns Enduring Powers of Attorney, which are registered when the person (Donor) loses mental capacity. A Lasting Power of Attorney by contrast is registered when it is made.

If someone has made an Enduring Power of Attorney (EPA) which has been properly executed,and that person loses mental capacity, the next step will be for their attorneys to register the EPA.

If there are no restrictions on the EPA, this can simply be done by applying to the Court with the necessary forms and fee. See below under ‘Next steps’.

What do I do if there are restrictions on the Enduring Power of Attorney?

If there is a restriction in Part B of the EPA that the EPA cannot be registered without medical evidence that you are losing capacity, you will need a letter from the person’s doctor to be able to register the form. The letter needs to say that the person has become or is becoming mentally incapable of managing their finances and affairs.

Some people have asked us in the past if medical evidence such as a Continuing Healthcare Assessment would be sufficient for this purpose. Unfortunately, even if the evidence does identify a severe need in relation to cognition, this is not specific enough to show conclusively and specifically that the person is incapable of managing her financial affairs. They may struggle with some aspects of life whilst managing perfectly well with others.

To obtain medical evidence you can approach the persons GP for a letter. If you have any difficulty obtaining evidence a private company such as http://www.tsfconsultants.co.uk/ – offers paid assessments and they operate throughout the UK.

Registering an Enduring Power of Attorney: Next steps

Once you have the evidence from the doctor (if required), you will need to download and complete form EP1PG (click here – choose the top ‘Zip pack’ option as it has both forms that you are going to need in it).

You will need to give a copy of the completed form EP1PG to the person who has lost mental capacity, 3 family members and to any other named attorney unless they will be joining in on the application to register. There is a list on this page of the family members you should notify, under ‘Telling people you intend to register’ – you start at the top and pick at least 3 family members closest to the top of the list as you can. If you pick family members from a particular class (for example ‘donor’s brothers and sisters’) you must send the notice to everyone in that class.

You then need to complete form EP2PG which is the application to register, and send this to the Office of the Public Guardian with the original EPA and a fee of £82. If the person gets certain means-tested benefits you can apply for an exemption in relation to the fee – or if they have less than £12,000 a year income you can apply for a 50% reduction. In both cases you need to provide evidence (e.g. a benefits letter or proof of income), There are more details on the application form LPA120 which is included with the Zip pack of forms.

Visit us

At April King Legal, we have a team of lawyers and independent solicitors experienced in drafting and submitting Lasting Powers of Attorney. Our headquarters are in Nottingham and we have locations across the UK. We would be happy to see you at a location near you or visit you in your home if this is more convenient – just give us a call or email us.

Covid-19: Please note that we will remain fully open during the November Lockdown period.
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