For many, appointing a power of attorney can be an additional formality when the time comes to write their will. Any chosen power of attorney will have control to manage and protect your future interests if accident or illness means you’re unable to make decisions yourself.
But when discussing these powers, we’re often asked about the types of power of attorney in the UK and what the difference is between an Enduring Power of Attorney (EPA) and a Lasting Power of Attorney (LPA).
Why Do You Need Power Of Attorney?
For many years, Enduring Powers of Attorney (EPA) were in place to make primarily property and financial decisions only, in any event where they needed to be made on your behalf. But this limitation of powers has been extended, and EPAs were replaced in October 2007 by two types of Lasting Power of Attorney (LPA).
Since the new regulations have been in effect, an EPA provides no specific allowance for decisions relating to health and welfare. A Lasting Power of Attorney (LPA) however, is more flexible and lets you choose separate LPAs – one for property and finance, and another for health and welfare.
Any EPA currently in place, and made prior to the October 2007 changes, is still valid, but only for matters of property and finance. The newer LPAs are more versatile and comprehensive, giving you more safeguards and protections if you suffer a decline in mental capacity or physical health.
With this in mind, here are three key aspects to think about when you decide to update to an LPA.
LPAs Can Work Together Or Alone
The old EPA is not as flexible as an LPA. In cases where several people have been appointed, they’re required to act together, sometimes known as ‘jointly’. This means for a decision to be made on your behalf and in your best interests, all those named have to agree with that decision.
With an LPA in place, you’re allowed to appoint up to four people (called attorneys) who can act separately or together, sometimes known as ‘jointly and severally’. With your permission, they can act alone or make decisions with other attorneys on your behalf.
If you decide to appoint more than one, you’ll need to decide on how they’ll make the decisions needed – ‘jointly’ or ‘jointly and severally’.
You can also allow them to make certain decisions ‘jointly’ while making other decisions ‘jointly and severally’. You’re also allowed to replace your chosen LPAs if they can’t or don’t want to act for you anymore.
LPAs Let You Replace Your Attorney
If it’s some years since you appointed your EPA representative to manage your affairs should you lose capacity, it may be that the person is no longer the correct or capable person to represent you. One of the biggest changes introduced with LPAs gives you the opportunity to appoint replacement attorneys if you need to.
Replacing your EPA with an LPA gives you the freedom to review, at any time, who you’d like to act on your behalf should you lose the ability to make decisions through illness or injury. There are several situations where you can call on a substitute attorney to step in to replace the original attorney if required. These include:
- if the original attorney dies
- if they no longer have the mental capacity to carry out the role
- if they no longer can or want to continue in the role
- if they’re your spouse or civil partner and they divorce you
As described earlier, you may wish to appoint different representatives for your property and financial affairs to those making decisions on your health and welfare.
Specific Health Conditions
It may be that when creating your EPA you established specific conditions which activate the EPA, such as a loss of mental capacity. This puts you at a disadvantage as it can only be registered by an attorney once you start to lose mental capacity.
It may be that there are other circumstances which prevent you from managing your affairs, such as physical injury or illness, which would not be covered by your existing EPA. Under both these circumstances, your current EPA could not be used.
A Health and Welfare LPA gives you much more flexibility and control over your affairs as you’re able to use it for either mental or physical incapacity, or both. When you’re unable to make decisions for yourself, your attorney can act on your behalf on sensitive or personal matters, including:
- your daily routine (washing, dressing, diet etc)
- any prescribed medication
- moving into a residential or care home
- any life-supporting treatment
The purpose of an LPA is to make decisions on your behalf while you’re alive and when you no longer have the capacity to do so yourself. When you die, the LPA role automatically ends and your final affairs are handled by the executors of your will.
Your Next steps
These are the main points of difference between an EPA and an LPA. However, what’s best for you depends on your individual circumstances and wishes. If your EPA was in place prior to October 2007, we certainly recommend you review it and consider whether it would make sense to update to Lasting Powers of Attorney.
While we understand EPAs and LPAs can be a complicated subject, the Will Power team are best placed to help you and answer any of your questions. If you’d like to discuss it with one of our team in more detail, please contact us.
We’ll always try to come out and visit you for a full review when we can, but our advice costs you nothing. We’ll give you our fees upfront so you know all the costs, and you’ll only be charged when we prepare your legal LPA forms and documents. Get in touch with the Will Power team today – call 0208 568 9602 or email us at firstname.lastname@example.org.