Published on: 3rd August 2020

Why were Enduring Power of Attorneys replaced by LPAs?

An Enduring Power of Attorney (EPA) is a document that existed before 1^st October 2007 and was directly replaced by a Lasting Power of Attorney (LPA) document. The key difference between EPAs and LPAs is that an EPA does not have to be registered to be used all the time the donor has mental capacity, whereas a Lasting Power of Attorney needs to be registered with the OPG in order to be used. This made an EPA document much more open to abuse from attorneys in particular who would go into banks producing an EPA and claiming they were managing the affairs of a donor without the same level of validation as you now need with an LPA.

So, what is an Enduring Power of Attorney?

An Enduring Power of Attorney is a document that gives somebody the legal right to act on and make financial decisions on the behalf of somebody else should they no longer have mental capacity to deal with their own affairs. It is a document that enables this without the need to apply for a Deputyship from the Court of Protection – an extremely lengthy and costly process to go through. EPA documents are only valid if all necessary signatures have been completed before 1^st October 2007, and since that date new EPAs have not been allowed to be drawn up.

Why were EPAs stopped?

EPAs were stopped primarily because they were open to abuse. As stated earlier, it was too easy for someone to claim they were managing the affairs of the donor without validation. Because an EPA gives control over financial affairs, documents can be signed, properties sold and purchases made. If this is open to any form of abuse then there can clearly be significant consequences.

What is the difference between an EPA and an LPA?

There are a number of key differences between an EPA and LPA which include:

• An LPA is required to be registered with the Office of the Public Guardian (OPG) to be considered a valid, useable, document, whereas an EPA does not need to be until the Donor, the person who created the EPA, has lost mental capacity.
• EPAs only cover property and financial affairs and not health and welfare so decisions about subjects like type of care and care homes cannot be made with an EPA. LPA for Health and Welfare on the other hand allow health and welfare decisions to be made.
• The process for putting an LPA in place is much more involved than it was with an EPA. EPA documents were generally 4 or 5 pages long, whereas LPA documents are significantly more and as the documents need to be registered, they are far more robust.

What happens if you have an Enduring Power of Attorney document?

If you do have an Enduring Power of Attorney document in place but not an LPA and are now panicking then do not worry! There are a number of options with this particular scenario and here at Casey & Associates we will help you however we can. If you book an appointment with one of our Consultants, they will be able to talk you through these options in more detail but we will usually advise one of the following:

• That the EPA you have in place is actually fine for your particular circumstance and therefore there is nothing you need to do.
• That parts of your EPA are fine but could perhaps be supported by another document. The EPA may, for example cover your financial affairs but not health & welfare. In this instance an LPA document could be drawn up to support your current EPA.
• That your EPA is unfortunately no longer fit for purpose. If this is the case then we would strongly advise you instruct a professional to create up to date Lasting Power or Attorney documents.

As is hopefully clear from this article, the main reason for an EPA document being replaced by an LPA document is because an LPA is a much more credible and robust document that needs to be registered and covers a wider range of matters, not just property and financial affairs. This therefore means that an LPA document is much less open to abuse than an EPA document.

If you have an EPA in place and want us to review your documents so we can discuss options with you, then get in touch with us and we can arrange for one of our Consultants to discuss the matter with you and advise as appropriate. Please  visit the contact page of our website to get in touch or call 01732 868190 and one of our friendly team will be able to advise.

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