Before the introduction of lasting powers of attorney (LPA)s in October 2007, individuals could create an enduring power of attorney (EPA). This legal document enabled an individual (the donor) to appoint attorneys to manage their property and financial affairs, but it did not grant them the authority to make decisions regarding the donor’s health and welfare.
EPAs , once signed were valid documents and could be used immediately, without the requirement to register the EPA with the court. However, in situations where the attorney believes that the donor has, or is beginning to lose capacity, the EPA must be registered with the Office of the Public Guardian. The attorneys only have limited powers whilst they are waiting for the court to deal with the registration process, which could take several months.
Existing EPAs can still be used, but can also be revoked and replaced with LPAs where donors want more flexibility in how their attorneys are appointed and future proof the appointment by appointing replacement attorneys.
The team at Sydney Mitchell is here to guide you through this process, providing expert advice and assistance, so you can have peace of mind knowing that those you trust will be managing your affairs if you are unable to .
Is my enduring power of attorney still valid?
Provided the EPA was completed, properly signed and dated by all parties on or before 30th September 2007, it is still a valid legal document.
The EPA can be used by your attorneys, and while you have mental capacity does not need to be registered with the. If you have begun to lose or have lost mental capacity in order to deal with and make decisions regarding your property and financial affairs, then your attorneys must register the document with the Office of the Public Guardian.
When can my enduring power of attorney be used?
Because the EPA does not need to be registered prior to use, your appointed attorneys could deal with your property and financial affairs on your behalf immediately that the document was validly completed.
Your attorneys will need to provide a certified copy of your enduring power of attorney to the financial institutions, together with their ID.
However, if you have started to lose, or have lost mental capacity, your EPA must be registered with the Office of the Public Guardian. During this period your attorneys will have very limited powers and they should seek legal advice about the limitations that may be in place.
To register the EPA, the attorneys will need to complete an application form and they will need to serve notice on both the donor and specified family members informing them the attorneys are applying to the court to register the EPA.
The Office of the Public Guardian can take several months to register an EPA and during this time, your attorneys can only deal with your property and financial affairs on a limited.
Should I make a lasting power of attorney if I have an enduring power of attorney in place?
The EPA will only allow your attorneys to make decisions about your property and financial affairs. LPAs are far more flexible and allow you to elect to appoint attorneys to make decisions about your health and welfare.
You can an LPA to deal with your health and welfare to sit alongside your EPA or you could chose to revoke your EPA and prepare an LPA to appoint attorneys to deal with your property and financial affairs.
Within the LPAs you can provide guidance and instructions to your attorneys about how you want them to act, including whether you want to allow them to make life sustaining treatment decisions under an LPA for health and welfare.
Next steps
We would suggest if you have an EPA in place, that you review the same to ensure that you are happy with the document, the attorneys you have appointed and how they can act e.g. jointly or jointly and severally.
If you want to make an LPA or have any queries in relation to your EPA, please do not hesitate to contact a member of our Private Client team on 0121 746 3300 or complete the enquiry form at the top of this page and we will be in touch with you shortly.
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