The Enduring Power of Attorney (EPA) was replaced on 1st October 2007 by the Lasting Power of Attorney (LPA). Existing EPAs made before this date remain valid and effective, but certain rules apply when cancelling an EPA or replacing it with an LPA.
The following guide looks at the current legal position since 2007 in relation to existing EPAs, we well as the differences between an EPA and an LPA.
Enduring Power of Attorney or Lasting Power of Attorney?
Before 1st October 2007, it was possible to make an Enduring Power of Attorney to allow the property or financial affairs of an individual to be managed by another person, or persons. An Enduring Power of Attorney (EPA) grants legal authority to individuals, known as ‘attorneys’, to act on behalf of someone with mental capacity in relation to financial and property matters in the event that they lose their mental capacity. The EPA must be registered before the individual loses mental capacity and before the attorneys can act. With a valid EPA in place, there is no requirement to apply to the Court of Protection to manage the individual’s affairs.
Replacing EPAs in 2007, the Lasting Power of Attorney (LPA) is the legal authority that gives another person, or persons (‘the attorneys’), the authority to make decisions on behalf someone else (‘the donor’), in circumstances where the donor needs help or is no longer able to make their own decisions.
LPA’s came into force under the Mental Capacity Act 2005 on 1st October 2007. Prior to this date, a donor would create an Enduring Power of Attorney (EPA) when wishing to appoint another person to make decisions on their behalf.
As with a Lasting Power of Attorney, an EPA allows an attorney to make decisions even if the donor lacks capacity to manage their own affairs. In other words, it can be used before someone loses their mental capacity or, so long as the EPA has been registered, after they have lost the ability to make their own decisions.
Is an Enduring Power of Attorney still effective?
Some donors will have created EPAs before the 2005 Act came into force, with the expectation that their chosen attorneys would manage their property and affairs in the future, whether or not they have capacity to do so themselves.
Although it is no longer possible to make a new Enduring Power of Attorney, if an EPA was made before 1st October 2007, it can still be registered and, if it is already registered, it will still be valid.
However, if you are worried about losing your mental capacity and you would like to appoint someone to look after your affairs, but you don’t already have an EPA in place, you will need to create a Lasting Power of Attorney instead.
Further, even if you already have an EPA, but you want to create a Power of Attorney so that a trusted person can make decisions about your health and care in the event that you are unable to make those decisions yourself, you will again need a Lasting Power of Attorney.
Differences between an EPA and an LPA
An existing EPA will still be effective, but it may not give you the same flexibility and benefits as n LPA. The 2005 Act effectively increased the range of different types of decisions that people can authorise others to make on their behalf.
In short, there is only one type of Enduring Power of Attorney, namely for decisions relating to a persons property and financial affairs. In contrast, there are two types of Lasting Power of Attorney: one for finances and one for health and personal welfare.
Under a health and personal welfare LPA an attorney can make decisions relating to your day-to-day care, as well as important decisions such as where you should live, or even consenting to or refusing life-sustaining treatment.
Please note, however, that a health and welfare LPA can only be used where the donor lacks the mental capacity to make these types of decision for themselves.
Moreover, the prescribed form for creating this type of LPA will specifically ask the donor to elect whether or not they want their attorney(s), or alternatively their doctors, to make the decision of whether or not they should receive medical treatment to keep them alive.
Please also note that you can appoint different attorneys to act for different matters under an LPA. It may be that you would like one attorney, or group of attorneys, to make decisions about your finances, and another person or persons to make decisions about your health and care.
Other significant differences between an Enduring Power of Attorney and a Lasting Power of Attorney are as follows:
- An EPA must be registered with the Office of the Public Guardian once the donor is no longer able to manage their own affairs, or when they start to lose capacity. In contrast, an LPA can be registered at any time before it is used, either before or after the donor lacks capacity to make particular decisions that the LPA covers. However, if an LPA is not registered, it can’t be used.
- An EPA can be used while the donor still has capacity to manage their own property and affairs, as can financial LPAs, so long as the donor does not say otherwise in the LPA. However, personal welfare LPAs can only be used once the donor lacks capacity to make the welfare decision in question.
- Attorneys acting under an LPA have a legal duty to have regard to the guidance in the Code of Practice set out under the 2005 Act, whereas EPA attorneys do not. That said, the Code’s guidance will still be helpful where an attorney acts under an existing EPA.
- Under an EPA, if you have several attorneys appointed to act jointly and just one of them is unable to act, the EPA ceases immediately. It was not possible to appoint replacement attorneys under an EPA. In contrast, under an LPA you can nominate replacement attorneys from the outset, ensuring that the LPA continues to be valid even where one person is no longer able to act.
Can an EPA be changed to an LPA?
If you have already made an Enduring Power of Attorney but want to benefit from the flexibility of a Lasting Power of Attorney, you can apply for an LPA instead.
If the existing EPA is not registered, you can simply destroy it. You can then complete the appropriate LPA form and apply for this to be registered. There are two types of LPA with two separate forms: LP1F for financial decisions and the LP1H for health and welfare decisions.
Alternatively, you could keep your EPA to deal with your property and financial affairs, but make and register an LPA to deal with your personal welfare in the event that you lose your mental capacity.
Can you cancel an EPA?
There are several ways to bring an Enduring Power of Attorney to an end. In particular, an unregistered EPA can be revoked or cancelled by the donor at any time without the need to make an application to the Court of Protection, so long as the individual has the mental capacity to do so and signs a deed of revocation.
If donors still have capacity, they can cancel the EPA and make an LPA covering their property and affairs instead. They should also notify attorneys and anyone else aware of the EPA that they have cancelled it.
If an EPA has been registered, the Court of Protection must confirm any revocation or cancellation. The donor will also need to satisfy the Court that they understand the effect that cancellation will have and why the EPA needs to be cancelled.
The Court of Protection can also bring an EPA to an end if it thinks that an attorney has abused their position, or where it is found that the donor entered into the EPA because of fraud or coercion.
Legal disclaimer
The matters contained in this article are intended to be for general information purposes only. This article does not constitute legal advice, nor is it a complete or authoritative statement of the law and should not be treated as such.
Whilst every effort is made to ensure that the information is correct, no warranty, express or implied, is given as to its accuracy and no liability is accepted for any error or omission.
Before acting on any of the information contained herein, expert legal advice should be sought.
Author
Gill Laing is a qualified Legal Researcher & Analyst with niche specialisms in Law, Tax, Human Resources, Immigration & Employment Law.
Gill is a Multiple Business Owner and the Managing Director of Prof Services - a Marketing Agency for the Professional Services Sector.
