Published on: 20th February 2017

Enduring Power of Attorney vs Lasting Power of Attorney time to upgrade?

The Mental Capacity Act 2005 came into force on October 1^st 2007. This Act is intended to help protect those aged 16 or over who may lack mental capacity. Please note however, that you must be 18 or over to create a Lasting Power of Attorney (LPA).

As a result of the Mental Capacity Act 2005 and following further legislation, Enduring Power of Attorneys (EPAs) were replaced by LPAs. Whilst no new EPAs can be created, any existing EPAs do remain legally valid. One key difference is that whilst EPAs only allowed attorneys to make decisions regarding the donor's property and financial matters, there are two types of LPAs: Property & Finance as well as Health & Welfare. Not only does a Lasting Power of Attorney have more options, it also gives more protection to the donor. To create an LPA, the donor must have someone to certify that they have mental capacity, that they are not being coerced into creating the document and the attorneys are of their choosing. This certificate provider can be somebody with relevant professional skills. The test for mental capacity was outlined in the case Banks V Goodfellow 1870 and here at Casey and Associates, we ensure our Consultants have all the relevant professional skills needed to make an assessment. All our Consultants have attended an accredited course on the Mental Capacity Act 2005 and they receive ongoing training. For either type of LPA to be valid and usable, it must first be registered with the Office of the Public Guardian, even if the donor still has mental capacity. The Property & Affairs LPA can then be used both before and after the Donor loses capacity, however the Health & Welfare LPA can only be used once the Donor has lost capacity. Contrastingly, an EPA would have come into effect as soon as it had been completed and signed by the donor and all relevant parties unless the donor put a limitation on it stating otherwise. Once the donor loses mental capacity, the EPAs must be registered in order to be used. Furthermore, the donor cannot register the EPA themselves; the attorneys have a duty to register the EPA should they feel the donor is losing or has lost capacity. Before applying to register the EPA document, the Attorneys are obliged to give written notice of the application to the donor, any co-attorneys and at least three close relatives. Anybody notified can then object to the registration. Attorneys must wait for the registered EPA to be returned before being able to use it to assist the donor. This differs to the LPA registration process in which either the donor or the attorneys can apply to register the LPA. Additionally, upon registering the LPA, only the people nominated as the  person(s) to notify' must be sent notification of the application. The nominated person(s), as well as the donor and any other attorneys can object to the LPA being registered. Lastly, an LPA also provides more flexibility in the appointment of your attorneys. In an EPA, attorneys can either be appointed jointly' or severally'. If you appoint your attorneys to act jointly', and one of them is unable to act, your EPA becomes invalid. Contrastingly, with an LPA you can appoint replacement attorneys ensuring the LPA remains valid. Should you wish for a Consultant to visit us to discuss creating LPAs, or upgrading from your EPA, please get in touch.

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