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This article was published on June 17th, 2019
It’s common for many of people to go through life without a second thought about what may happen tomorrow, next week or in years to come, as a result, a power of attorney isn’t always at the forefront of people’s minds, however, it should be. When discussing powers of attorney we have been asked what the difference is between an Enduring Power of Attorney (EPA) and a Lasting Power of Attorney.
As a lasting power of attorney, otherwise known as an LPA, is one of the most important documents you may ever complete, we have created this article to help you identify the difference between an Enduring Power of Attorney and an LPA and why it’s integral that you consider creating an LPA even if you already have an enduring power of attorney in place.
An enduring power of attorney is what preceded the lasting power of attorney before they came into existence on the 1st of October 2007. An enduring power of attorney would formerly have been created when an individual wished to appoint another person to act on their behalf with regards to the donor’s (the person creating the enduring power of attorney) property and financial affairs.
If you have already created an enduring power of attorney, it is worth noting that if an enduring power of attorney was created before the 1st of October 2007, it will still be effective and valid, however as we will highlight during the course of this article, enduring powers of attorney are much more limited in their application than their lasting power of attorney counterparts.
An LPA is an important legal document that everyone should complete. Unlike an enduring power of attorney, there are two types of LPA which offer much more flexibility in their application and use. The first type is a health and welfare LPA. This deals with your health and welfare decisions and can only be used after you have lost the ability to make your own decisions, which is also known as ‘losing your mental capacity’.
The second type is similar to how an enduring power of attorney may function and deals with any property you may own as well as your financial affairs. This can be used before or after someone loses their mental capacity.
In both cases, it’s important to remember that an LPA is for use during your lifetime as and when you need it, it is not for use after death. In the event of death, an LPA is superseded by your Will (another document that everyone should have in place).
There are several key differences between an LPA and an EPA that one must take note of.
We have already outlined that an LPA offers increased flexibility for the donor (the person making the LPA), with LPAs covering health and welfare as well as property and financial affairs, however, there are noteworthy differences.
Firstly, we’ll discuss what happens when appointing the person or people you wish to make decisions for you should you fall ill or lose capacity.
Under an EPA the regulations are much more stringent for elements such as who may be appointed as an attorney.
EPAs for example only allow one attorney to be appointed or where multiple attorneys are selected, they would all have to act together.
This can cause complications if the person appointed becomes ill or loses capacity themselves. Also, if your attorneys become unable to act under an EPA it becomes invalid as there is no one to replace them.
However, an LPA is much more flexible and offers greater protection as you can appoint replacement attorneys. This is particularly useful if your original attorney or attorneys become unable to act.
LPAs have the option to allow a donor to register the LPA immediately and they afford greater protection due to the fact that the donor can choose for the LPA to be actionable should they lose mental capacity, physical capacity or both.
However, for individuals who have an EPA in place, they may be more restricted. This is due to the fact that an EPA can only be registered by an attorney once a person has started to lose capacity. So if the donor stipulates that the EPA may only be registered once they lose mental capacity, but their physical health deteriorates to the point where they need their attorney to act on their behalf, the situation can become very complex as the EPA does not allow, in this instance, for the EPA to come into force.
LPAs are more also more ‘secure’ as you have to have a certificate provider who signs the document to confirm that the person making the LPA understands the power they are giving and is not subject to any undue influence or pressure.
Whether you have an EPA or an LPA in place, we strongly advise that you have it reviewed by a legal professional in order to ensure all your needs and expectations are met should you need the EPA or LPA to be applied.
Our team of Wills, Trust and Probate solicitors are specialists in both LPAs and EPAs and will be able to ensure that you have the correct legal documentation to ensure your interests are protected.
The team is led by a member of STEP (Society of Trust and Estate Practitioners) who can act as a professional Attorney if required.
If you’d like to discuss your options with a member of our team, get in touch today by calling 0800 1979 345 or alternatively you can complete our online enquiry form and we will get back to you at a time that better suits you.
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