What is the difference between an Enduring Power of Attorney and Lasting Power of Attorney?
Power of Attorney, Lasting Power of Attorney and Enduring Power of Attorney are often used interchangeably but have different legal definitions under UK law. Lasting Power of Attorneys replaced Enduring Power of Attorneys which has left some confusion over how you’re covered when it comes to having control over decisions made on your behalf.
First things first; Lasting Power of Attorney (LPA) and Enduring Power of Attorney (EPA) are types of power of attorney. This is a legal document that allows someone to make decisions or act on behalf of someone else if they’re no longer able to themselves. This could occur temporarily if for example you’re in hospital and need help with tasks such as paying bills, or for a more long term situation such as you are diagnosed with dementia and lose the mental capacity to make decisions in the future.
So what is the difference between an Enduring Power of Attorney and a Lasting Power of Attorney?
The government replaced EPA’s with LPA’s in 2007, but any EPA’s made and signed before 1 October 2007 are still valid. However, there are some key differences between them, which make replacing them with an LPA advisable:
Why did they change?
There are some limitations with EPA’s which LPAs were brought in to address. In particular, giving you greater flexibility over decisions and attorneys, and also to prevent fraudulent power of attorneys being taken out for someone.
Preventing fraudulent Power of Attorneys
In this case, there are two changes which help prevent that:
When putting together an LPA, the person who the LPA is being registered for (known as the donor) has to be certified to have the mental capacity to do so, and that they are not being subjected to pressure or fraud. A third party, who has known the donor for at least two years and is not being appointed as an attorney, has to complete a statement certifying your mental capacity and that the donor understands the scope and purposes of the LPA. That person is known as the ‘certificate provider’, and this protection is designed to help prevent fraudulent power of attorneys being put into place.
Another restriction with an EPA is that they can only be registered with the Office of Public Guardian once the donor has lost mental capacity. The donor themselves cannot register the EPA, that has to be done by the attorneys. This presents two problems; firstly the attorneys cannot use the powers granted to them until it is registered, which could cause issues if you urgently need money to pay for healthcare or if you need to sell your property to pay for care fees.
The second problem is that the registration process involves the attorneys giving written notice of the application to the donor, any co-attorneys and at least 3 close relatives. But these relatives could be someone from whom you are estranged or distant relatives who are hard to track down, and any of those notified can then object to the registration. Both of which could delay your attorneys being able to access funds needed for your care and the fact the attorney makes the application and not the donor presents another risk from unscrupulous attorneys trying to gain fraudulent control over a donor against their wishes.
Whereas an LPA comes into effect as soon as it is registered, meaning the attorneys can begin to make decisions immediately. But also means your attorneys can also make decisions temporarily, such as if you have to go into hospital and are physically unable to manage financial affairs – such as being able to pay essential bills.
An LPA gives you greater flexibility over decisions
Aside from these; other changes give you more flexibility over attorneys and what decisions they can make:
An EPA only covers financial decisions and cannot cover health and welfare decisions. In this case, your relatives will have to apply to the courts to act as a guardian, which could be a costly process. Whereas there are two types of LPA’s; one which covers the same property and financial decisions as an EPA, and another which covers health and welfare decisions, such as what care home you live in, or making decisions about what medical treatment you receive.
A further benefit of an LPA is that you have more flexibility in who you appoint as attorneys, such as the ability to appoint replacement attorneys in case the original ones are unwilling or unable to do the job. With an EPA, it was common to appoint spouses as each others attorney, but if that spouse also loses mental capacity, then they won’t be able to act on your behalf. With an LPA, you can appoint your spouse but also your children as replacement attorneys. Meaning one LPA should cover you in case something were you happen to your relatives and avoid any future legal issues such as going through the courts to change attorneys.
Furthermore, another change is that you can add instructions to the attorneys about what they can and cannot do, such as ‘you can sell my house to release care funds’ or ‘you can’t sell my shares’. And add preferences such as how you’d like financial or healthcare decisions conducted, for example, ‘do not resuscitate me under these circumstances’, or even more practical decisions such as who looks after your pet if you were to go into a home.
How to change an Enduring Power of Attorney to a Lasting Power of Attorney
As you can see, there are benefits from changing an old EPA to an LPA, so how do you do it? Unfortunately, there isn’t an easy way to convert an EPA. Instead, you will have to register a new LPA, although once this is done, it will supersede any previous EPA’s drawn out. We have more information on how to register a Lasting Power of Attorney here. Or you would like to speak to us directly you can contact us either by filling in a contact form, sending an email to email@example.com or give us a call on 020 8619 0358.