Enduring Powers of Attorney

Understanding Enduring Powers of Attorney: What You Need to Know

Enduring Powers of Attorney (EPAs) once played a significant role in ensuring one’s financial and healthcare decisions were upheld in times of incapacity. However, with legal reforms and the introduction of Lasting Powers of Attorney (LPAs), EPAs have been largely superseded. In this article, we explain what EPAs are, when and how they were superseded, and what steps to take if you still possess one.

What is an Enduring Power of Attorney (EPA)?

An Enduring Power of Attorney is a legal document that grants someone (known as an attorney) the authority to make decisions on your behalf. This legal instrument was created under the Mental Capacity Act 1985 in England and Wales and was designed to remain effective even if the donor (the person granting the power) became mentally incapacitated.

The Supersession of EPAs: The Rise of LPAs

EPAs were used to ensure that individuals’ interests were safeguarded when they could no longer make decisions for themselves due to mental incapacity. However, as times evolved, so did the legal framework surrounding these matters.

In October 2007, the Mental Capacity Act 2005 replaced the old system of EPAs with Lasting Powers of Attorney (LPAs). LPAs introduced two distinct forms:

Property and Financial Affairs LPA: This grants authority to an attorney to manage your financial affairs, including property and assets.

Health and Welfare LPA: This authorises your attorney to make decisions regarding your health and welfare, such as medical treatment, living arrangements, and even end-of-life care.

One of the key differences between EPAs and LPAs is that LPAs require registration with the Office of the Public Guardian before they can be used, even if the donor is still mentally capable. This ensures greater transparency and safeguards against potential abuse of power.

What to Do If You Have an Existing EPA

If you currently possess an Enduring Power of Attorney, there are important steps to consider:

Check Its Validity: Ensure that your EPA was executed correctly and meets the legal requirements of the time it was created. If any doubts arise, consider consulting Just Wills and Legal Services. In some instances it’s advisable to create a Lasting Powers of Attorney, which we can support with.

Review Your Preferences: Take the time to review your existing EPA and assess whether it accurately reflects your current wishes and circumstances.

Consider Creating an LPA: Given the advantages and safeguards offered by LPAs, it is advisable to consider creating a Lasting Power of Attorney. This will provide you with greater control and legal protection. Again, we can support with this.

Register Your EPA: If your EPA has not been registered with the Office of the Public Guardian, you may wish to do so now, especially if you believe that you or your attorney may need to use it soon.

In conclusion, while Enduring Powers of Attorney once served a crucial purpose in Estate Planning, they have largely been superseded by the more comprehensive and protective Lasting Powers of Attorney. So much so that it’s incredibly uncommon that we see any. If you have an existing EPA, it is advisable to review it and consider transitioning to an LPA to ensure your financial and healthcare decisions are safeguarded in the best possible manner. Consulting Just Wills and Legal Services can provide you with the guidance and support needed to make informed decisions about your enduring power of attorney.