Enduring and lasting powers of attorney

Lasting Power Of Attorney And Enduring Power Of Attorney - What's The Difference?25th Sep 2019

Dementia now affects more families than ever before: UK hospitals care for 1,000+ patients with the condition every day.

So it’s vital to have powers of attorney in place – enabling your chosen loved ones and trusted professionals to take decisions on your behalf if you lose mental capacity.

You’ve probably heard of enduring powers of attorney and also lasting powers of attorney…but what’s the difference?

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Difference Between Enduring And Lasting Powers Of Attorney

Lasting powers of attorney (LPAs) replaced enduring powers of attorney (EPAs) on October 1 2007. EPAs signed before then remain valid but LPAs offer more benefits. There are two types of LPA:

  • Property and Financial Affairs
  • Health and Welfare.

So if you already have a valid EPA, should you upgrade to an LPA? And if so, which one?

Here are some scenarios which explain the limitations of the old EPA in comparison with newer, more versatile LPAs.


EPAs Don’t Cover Health And Welfare

This is a key issue. EPAs cover only your property and finances – not decisions relating to your health, welfare and medical care.

As you get older and are more likely to be hospitalised at some point, you may need a power of attorney that allows someone to take decisions to ensure you’re getting the right treatment.

LPAs enable you to nominate different attorneys for each type, such as:

  • Property and Financial Affairs – a loved one, who can then instruct a solicitor or accountant
  • Health And Welfare – a loved one, who can then get advice from a trusted medical professional.


An LPA Makes It Easier To Appoint Substitute Attorneys

What happens if the loved one you’ve nominated to be your attorney starts to lose their own mental capacity before you do? What if they die before you do?

It is (at present) uncommon for both people to lose capacity at the same time. However, this may change as dementia continues to become more prevalent.

But it is not uncommon for the carer to die before the person who has lost capacity (often due to the added pressures they face). The person needing care may then be left in a vulnerable situation.

So what’s the answer?

Here’s the issue – neither an EPA nor an LPA can be changed once you have signed it and registered it with the Office of the Public Guardian. You can’t amend them as you can a will.

But when you’re drawing up an LPA, you can nominate substitute attorneys in case your first choice attorneys are – for any reason – unable to perform the task. This option did exist with the old EPAs but the process was more complex. (You would have needed a separate EPA to cover the eventuality.)


Certification Of Lasting Powers Of Attorney

All LPAs must be certified before they can be signed and registered. This is an extra safeguard to ensure that the ‘donor’ giving power of attorney is fully aware of what they are doing and that their trust is not abused.

This added certification stage did not exist with EPAs. The donor’s attorneys simply had to notify three people (usually family members) that the donor was losing (or had lost) mental capacity. The EPA would be registered only if the donor were losing or had lost capacity.

This highlights one of the great failings of an EPA – until registration, no-one would know of the existence of the EPA (other than the attorneys and the donor). An attorney up to no good could use this loophole to defraud the donor with impunity!

The fraudster would simply not register the EPA when the donor had lost capacity and continue to defraud them – with no oversight. Only when the money ran out would the problems come to light…by which point it would then have been far too late!  

Certification is a useful safeguard but there are still pitfalls. In recent years the government has diluted the protection that it offers by changing the LPA documents:

The old version of the documents would highlight solicitors, doctors, accountants and other professionals who could certify the LPA. It would ask them to confirm and describe that they had the requisite skills needed to provide a certificate. 

Both the old forms and the new forms also allowed someone who was simply known to the donor for more than two years to certify the LPA (regardless of whether they were member of one of the professions or not). They would simply need to state how they were capable of providing a certificate.

But the newest LPA forms dispense with that need. All you need to do now is write your name and address and sign the form.

We would recommend that you get a professional to certify your LPAs. It provides added peace of mind. 


Do I Need An LPA If I Have An EPA? Our Recommendations

If you have an existing EPA, that may be enough to cover your finances (but you should review it in case your circumstances have changed). You would need an additional LPA to cover your health and welfare requirements.

If you have no powers of attorney, we recommend that you get two LPAs – one to cover your finances and property, the other to cover your health and welfare.


Find Out More About Powers Of Attorney

For expert advice, please contact Coles Miller Partner Stuart Bradford, head of the Probate Department.

Stuart is a Court of Protection Panel Deputy (one of only 10 in the South West and the only one in Dorset). He works with the Office of the Public Guardian to provide legal protection to people who have lost the ability to take decisions and have no friends or family to help them.

For more information, please phone him on 01202 355695.
 

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