In the UK, Enduring Powers of Attorney were replaced by Lasting Powers of Attorney (LPAs) in October 2007. So, are they still valid?
What is an Enduring Power of Attorney?
An Enduring Power of Attorney (EPA) is a legal document that allows an individual (the Donor) to appoint one or more trusted persons (Attorneys) to make decisions and manage their financial affairs or property on their behalf. The EPA remains valid even if the Donor loses mental capacity in the future.
The Validity of Enduring Powers of Attorney
Enduring Powers of Attorney created before October 1, 2007, remain valid and can be used. These EPAs are governed by the Enduring Powers of Attorney Act 1985 and subsequent regulations. However, EPAs must be registered with the Office of the Public Guardian (OPG) if the Donor is losing or has lost mental capacity. Unregistered EPAs may not be recognised by financial institutions or other relevant authorities.
The Difference between Enduring Power of Attorney and Lasting Power of Attorney
The key difference is that EPAs only cover financial and property matters, while LPAs cover both financial and property affairs as well as health and welfare decisions.
Although it is not necessary for an individual to create both, it is recommended to do so in order to ensure comprehensive coverage of all situations.
Another significant distinction is that Enduring Powers of Attorney are not required to be registered while the donor is mentally capable. They only need to be registered when the donor loses capacity and they are intended to be used.
In contrast, Lasting Powers of Attorney must always be registered, regardless of the donor's capacity. Without registration, no Attorney is authorised to act on behalf of the donor. Therefore, it is crucial to promptly register any Lasting Power of Attorney.
Can New Enduring Powers of Attorney Be Made?
Since October 1, 2007, it is not possible to create new Enduring Powers of Attorney in the UK. Instead, Lasting Powers of Attorney should be used for both financial and property affairs and health and welfare decisions.
What if the Original Enduring Power of Attorney has Been Lost?
If the original Enduring Power of Attorney has been lost, the Attorneys should make reasonable efforts to locate it. If the EPA cannot be found, the Attorneys may need to provide a statement explaining the circumstances of the loss. The OPG will assess the situation and may require additional information or evidence before proceeding with registration.
Appointing a Lasting Power of Attorney
Here is a step-by-step process for appointing a Lasting Power of Attorney now that Enduring Powers of Attorney have been replaced:
- Understand the Purpose: Familiarise yourself with the concept of LPAs and the reasons why they have replaced EPAs. LPAs allow individuals to appoint someone they trust to make decisions on their behalf, known as an Attorney, in case they lose mental capacity in the future.
- Choose the Type of LPA: Determine whether you need a Property and Financial Affairs LPA or a Health and Welfare LPA. The Property and Financial Affairs LPA covers decisions related to finances, property, and other assets, while the Health and Welfare LPA addresses decisions about healthcare, medical treatment, and personal welfare.
- Select your Attorney(s): Decide who you want to appoint as your Attorney(s). This should be someone you trust to act in your best interests and make decisions that align with your wishes. You can appoint multiple Attorneys, and it's advisable to choose alternative Attorneys in case your first choice is unable or unwilling to act.
- Consider Guidance and Restrictions: Determine if you want to include any guidance or restrictions for your Attorney(s) regarding specific decisions or actions they can or cannot take on your behalf. This can help provide clarity and ensure your wishes are respected.
- Obtain the Necessary Forms: Visit the official government website of your country or region to download the relevant LPA forms. These forms may differ depending on your jurisdiction, so ensure you are using the correct ones.
- Complete the Forms: Fill in the LPA forms accurately and provide all the required information. This typically includes your personal details, the details of your chosen Attorney(s), and any specific instructions or restrictions.
- Seek a Certificate Provider: Arrange for a Certificate Provider to confirm that you understand the nature and implications of appointing an LPA. The Certificate Provider can be a professional, such as a solicitor or a doctor, or someone you have known for at least two years and who possesses the necessary skills and knowledge.
- Notify the Relevant Parties: Inform your chosen Attorney(s) about your intention to appoint them and discuss your wishes and expectations. It's crucial to ensure they are willing to take on the responsibility and understand their role.
- Register the LPA: Once the forms are completed and signed, register the LPA with the appropriate authority or government office. There may be a registration fee involved, so check the requirements and payment details.
- Keep Copies and Inform Others: Keep copies of the registered LPA for your records, and provide copies to your Attorney(s), close family members, and any other relevant individuals or institutions, such as healthcare providers or financial institutions.
Seeking Legal Advice
Seeking a solicitor's advice when appointing a lasting power of attorney is highly recommended. Their knowledge, expertise, and guidance provide essential legal protection, ensure informed decision-making, and mitigate the risk of complications or disputes. By involving a solicitor, individuals can appoint an attorney with confidence, knowing that their interests and welfare are safeguarded in the event they are no longer able to make decisions independently. Call our experienced wills solicitors or send them an enquiry to info@witansolicitors.co.uk.
