Prior to October 2007, many people who made powers of attorney would have made Enduring Powers of Attorney (EPAs). From October 2007 EPAs were replaced by Lasting Powers of Attorney so it is no longer possible to make a new EPA. However, many existing EPAs will still be valid and may still be used by the relevant attorneys if needed.
What does an EPA Cover?
EPAs ONLY cover a person’s property and financial affairs, NOT their health and welfare affairs. If you have an existing EPA and wish to appoint attorneys to be able to make health and welfare decisions for you, for instance the care and treatment you receive or where you should live or even decisions on life-sustaining decisions, you will need to make a new Health & Welfare LPA to allow your attorneys to deal with these scenarios, a spouse or family member will not automatically have this authority if you lack capacity. It would also be recommended to update your EPA with the Property & Finances LPA to ensure that all of your affairs are up to date and both powers of attorney contain all of the information that may be needed.
What is the difference between EPAs and LPAs?
One of the main differences between EPAs and LPAs is the registration process. LPAs can be, and usually are, registered immediately so that the attorneys can use them straightaway when the need arises or with your consent. However, EPAs may only be registered when the person starts to lose mental capacity, so it is the responsibility of the attorneys to keep this under review and check whether registration needs to take place. It can of course be tricky to decide whether the person is losing capacity or not, so it is often useful to involve a medical professional to confirm any concerns.
The registration process is not quick (4-6 months on average) but is relatively straightforward although certain people will need to be notified of the application. Complications may arise if multiple attorneys are appointed but the attorneys do not agree on the need to register, or if only one attorney wishes to register the EPA, for example. The major issues arise if a person lacks capacity quickly, the attorneys must wait until the EPA is reregistered (4-6 months) before they can act or make decisions which ultimately may defeat the object of why the EPA was set up in the first place.
Recommendations
Over time – laws change as does an individual’s circumstances, after putting legal documents in place like EPA’s its always beneficial to review these to make sure they still reflect your current wishes. Consider – Are your current attorneys still aware they are your attorney? Could they still carry out this responsibility? Have they moved away?
It is important you always have the correct people in place making these major decisions on your behalf when you cannot. If you would like to review your EPA’s or any part of your estate planning – feel free to contact us through our contact details on our website.