Lucy Wood, wills, trust and probate partner at B P Collins, explains the key differences between an Enduring Power of Attorney (EPA) and Lasting Power of Attorney (LPA) and advises on any further action a donor – the person who is making one – or attorney may need to take, to avoid being caught out in the future.
Up until 1st October 2007, Enduring Powers of Attorney (EPA) could be made, which enabled a donor to choose someone who they trusted, to look after their financial and property affairs, if they lost capacity. EPAs still remain valid today. However, they do not cover health and welfare decisions, which is why, in 2005, two different types of Lasting Powers of Attorney (LPAs) were introduced – property and financial LPAs and health and welfare LPAs. Therefore, if a donor made an EPA but would now like to choose someone to make care decisions on their behalf should they lose the ability to do so, they would need to make a new health and welfare LPA.
Registration requirements
After an EPA was signed, it could be used immediately. Registration with the Office of the Public Guardian (OPG) was, and still is, only required once the donor loses capacity. However, not only does the registration of an old-style EPA require a minimum of three family members to be notified, it also takes 8-10 weeks to register – or longer if a family member objects – once the application is submitted. This could be quite a stressful process for an attorney at an already anxious time, particularly if they are caring for the donor.
Whereas, an LPA must be registered with the OPG before it can be used. Although this can also take 8-10 weeks, it may be at a less difficult time as the donor still has full capacity. Also, if the donor begins to lose the ability to make their own decisions, there is no need to notify family members or the OPG, if the LPA has already been registered.
It is vital that anybody looking to create an LPA or register an EPA, should seek expert legal advice before doing so. While many people might consider the task too time consuming or expensive, it would be wise to think seriously about the security the power might provide you with. If a loved one loses capacity and a power of attorney is not in place, an application to the Court will need to be made for someone to be appointed as a deputy. B P Collins can assist with all applications to ensure they are executed efficiently and correctly.
For advice, please contact enquiries@bpcollins.co.uk or call 01753 889995.
