Enduring Power of Attorney Solicitors

The Mental Capacity Act 2005 came into force in October 2007 changing the law surrounding powers of attorney. This meant that Enduring Power of Attorney was effectively replaced by the introduction of Lasting Power of Attorney.

If you are amongst the thousands of people who made an EPA before October 2007, it remains valid as long as the EPA has been signed. Rowlinsons Solicitors can help if you need to register an EPA, or are considering replacing it with an LPA.

What is an EPA?

An enduring power of attorney (EPA) gives an appointed attorney (or attorneys) the legal right to make decisions about property and finances on behalf of another person (the donor). Any decisions the attorney makes must be in the donor’s best interests and take into account their wishes and needs as outlined in the EPA.

Before October 2007, with an EPA an individual could appoint a trusted person to help them with making decisions as long as they still had mental capacity. Once the document was signed it immediately gave the attorney the authority to act on the donor’s behalf.

When the donor of an EPA loses mental capacity, the attorney has to register it with the Office of the Public Guardian (OPG) to continue being able to legally act on their behalf. There are still thousands of EPAs in existence which is why they are still relevant today.

What are the duties of an enduring power of attorney?

The responsibilities and duties authorised by an EPA differ depending on the unique circumstances of the individual, however, the role typically involves:

• Working with the donor to help them manage their affairs (if they are still capable)
• Managing property or other investments
• Paying bills
• Claiming benefits
• Maintaining accurate accounts of all transactions

It should go without saying that attorneys must not take advantage of the donor and their situation to gain benefits for themselves. To avoid any chance of this happening, the attorney must ensure that their own assets and financial affairs are kept separate and that they maintain detailed, accurate accounts on behalf of the donor’s estate.

What’s the difference between an EPA and LPA?

Both an Enduring Power of Attorney and a Lasting Power of Attorney grant a trusted person (or persons) the power to deal with another person’s financial affairs once they become mentally incapable.  However, there are clear differences between the two including what powers are granted and when the power of attorney can be registered.

Powers

An EPA only relates to property and finance while powers granted under an LPA can authorise the nominee to manage a person’s care, medical treatment, and welfare as well as their financial arrangements.

Registration

An EPA authorises the attorney to act as soon as it’s signed, as long as the donor still has mental capacity. Once the donor becomes mentally incapable the EPA needs to be registered to continue these powers, but it cannot be registered before then. This means the attorney only has limited powers for the 4–6-week period it takes to complete registration, which could cause problems if decisive action is needed.

Conversely, an LPA can be registered while the donor still has sufficient mental capacity so if the donor becomes mentally incapable, the attorney can start using their powers immediately. This means decisions can be made quickly, if necessary, to protect the best interests of the donor at all times.

What does mental capacity mean?

Having mental capacity means being able to make an effective decision on a specific matter at the time the decision needs to be made. This means you must be able to understand, evaluate, remember, and communicate the information relating to the decision and understand the consequences of making that decision.

No one can make decisions on your behalf unless it can be shown that you lack the ability to make them yourself. Taking the time to make a decision should not be seen as a lack of capacity and you should receive the help you need first before anyone else takes over power of attorney.

Is my EPA still valid?

An EPA signed on or before 1^st October 2007 is still valid providing the donor (person making the power of attorney) and attorney(s) both signed the document. As time goes by it’s worthwhile reviewing your EPA to make sure it’s still up to date.

Can I amend my EPA?

No. Once the EPA has been signed it becomes a deed and cannot be amended. An unregistered EPA can be cancelled at any time, providing you have mental capacity. If you want to remove someone as your attorney or cancel the EPA you would have to apply for a deed of revocation.

To ensure your best interests in the future, it is important to check that your EPA is up to date which means you should review it regularly. If there are any changes to be made or you would like to appoint a new attorney then you will have to make an LPA. You could also make an additional LPA for decisions about your personal health and welfare.