Enduring Power of Attorney Explained

Have you or someone you know made an old style “Enduring Power of Attorney" (EPA)? Amelia Clarke, solicitor at Holmes & Hills, explains what an EPA is, their validity, use and whether you are better off updating them.

What is an Enduring Power of Attorney?

An (EPA) is a legal document enabling the person(s) you have appointed under it to manage your property and financial affairs in the event that you are unable to do so for yourself. The person who has made the EPA is known as the ‘donor’ and the person appointed is an “attorney”.

Of course, the main reason for having a power of attorney is to help when the donor loses mental capacity.  If the donor begins to/ loses capacity to manage their financial affairs, the attorney(s) named in the document must register it with the Office of the Public Guardian in order to use it. EPA registration can take 8-10 weeks during which period if the donor does not have mental capacity, the attorney(s) will in effect be unable to act.

Since October 2007 powers of attorney have been in a more modern style  known as ‘Lasting Powers of Attorney’ (LPAs).

How is an LPA different and should I make one?

EPAs cannot be ‘turned into’ an LPA. It is possible, however, to do new LPAs and cancel your EPA as long as you have capacity to do so.

1. LPAs can be registered as soon as they are made, not just when capacity is lost like an EPA. This is beneficial as it means should your document need to be used; it is ready instantly.

• There are two types of LPA, property and finance, and health and welfare. The health and welfare document enables your chosen attorneys to speak as if they were you should you lose capacity to make decisions about where you live, what you wear and what you eat for example. They can also be authorised to make decisions about ‘Life Sustaining Treatment’. Under an EPA, your attorneys can only make decisions about your finances.

• Once your LPA has been registered, you may use the governments online service to allow certain organisations to view the LPA online. This service is not available for EPAs, and institutions will need to see the original or a certified copy.

Making LPAs now, will make decision making for your attorneys easier in the future. They will not have to register your document should you lose capacity. The EPA registration process involves notifying various family members and completing a variety of forms and can be a cumbersome expensive and stressful process. This can be circumvented by doing LPAs now.

Is my Enduring Power of Attorney still valid?

Yes, EPAs are still valid. However, for the reasons discussed in this article, if you can, we recommend that you create LPAs as soon as you are able.

How Holmes & Hills can help

Holmes & Hills have offices in Colchester, Braintree, Sudbury, Halstead, Tiptree and Coggeshall and offer appointments face to face, by telephone or by video conferencing. Furthermore, we are able to offer home visits where necessary to accommodate our clients needs, meaning we can bring our specialist services to you.

Our friendly team are here to help, contact us today to book an appointment.