Wills and probate solicitor Louise Harris explains the differences between an Enduring Power of Attorney (EPA), and the new Lasting Power of Attorney (LPA).
What is a power of attorney?
A power of attorney allows someone appointed by you to look after things on your behalf should you become unwilling or unable to do so yourself.
Powers of attorney are often (and incorrectly) associated with the elderly. But, we should all have a power of attorney, just in case the unexpected were to happen (eg we became ill).
Enduring Power of Attorney (EPA)
Until 2007, if you made a power of attorney you did so under the ‘enduring power of attorney’ regime. It was a simple process whereby you signed a short prescribed form appointing your chosen attorney. They would sign too to accept the appointment.
If the person who made the appointment lost mental capacity, the appointed attorney would ‘register’ the EPA with the court. This activated it, and allowed the attorney to act on behalf of the appointer – hence the term ‘enduring power of attorney’. In fact, the appointment could be used from any point after it had been signed (ie before registration), until such time as capacity was lost (which would then require registration).
An EPA executed before the change in the law (see below) remains legally valid and can still be used.
Mental Capacity Act 2005
The Mental Capacity Act (2005) was intended to provide a more comprehensive framework of protection for those aged 16 and over who lack/may lack mental capacity. The Act came into ‘force’ the 1st October 2007.
Lasting Power of Attorney (LPA)
So, 2007 saw the dawn of lasting powers of attorney. The spirit of them mirrors EPA’s. But, they are more complicated to put into place and specifically cover different aspects of life now too.
Certificate Provider for LPA
To appoint an attorney you now need someone to certify that you have mental capacity and that you are choosing your attorney of your own free will (ie you are not being pressured into it). The certificate provider can be your solicitor, doctor, or someone not related to you that has known you for more than 2 years.
Registration of an LPA
Unlike the old EPA’s, you must now ‘register’ an LPA with the court before it can be used – ie even if the person making the appointment still has capacity.
When registration takes place a number of designated people must be notified that it’s happening. This is to provide a safety net against rogue attorneys taking advantage of vulnerable people.
Property & Affairs LPA
There are now 2 types of attorney. The most common is ‘property and affairs’. In simple terms it allows your attorney to look after your finances. It’s most akin to the old EPA. It permits the attorney to do anything from sign a cheque, to selling your house!
Health & Welfare LPA
This is new. It allows your appointed attorney to make decisions on your behalf relating to your health and welfare and can include anything from deciding what care you receive and where you receive it (eg which care home), right through to instructing doctors to not intervene in a critical medical situation.
Fewer people seem to take up this type of LPA, relying instead on the fact that a finance appointment will indirectly allow the chosen attorney to make choices in any event on issues such as care homes.