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.
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.
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.