Since October 2007 Enduring Powers of Attorney have been replaced by Lasting Powers of Attorney (LPAS). However, providing you as the Donor (the person making the Enduring Power of Attorney or LPA) has made and signed a valid Enduring Power of Attorney before this date your Enduring Power of Attorney can still be used. It is not possible to amend your Enduring Power of Attorney once it has been executed and therefore if there are changes to be made, you would need to revoke your Enduring Power of Attorney and make a new LPA.
I am often asked whether it is necessary to replace an Enduring Power of Attorney with an LPA. To help answer this it is helpful to take a look at the differences between Enduring Powers of Attorney and LPAS.
An Enduring Power of Attorney can only be used for Property & Financial Affairs and does not cover health and welfare matters. Furthermore, an Enduring Power of Attorney can only be registered when the Donor no longer has mental capacity. This delay in registration could mean that your Attorney(s) could be left dealing with, and waiting for, the Enduring Power of Attorney to be registered at a time when it could be needed the most. It does also mean that, whilst the form remains unregistered, the Donor could be at greater risk if their Attorney is not acting correctly.
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You, as the Donor can have an LPA for both your property & financial Affairs and for health and welfare. An LPA can only be used by your Attorney(s) once the form has been registered at the Office of the Public Guardian. For property & financial affairs you can decide when your Attorney(s) can use the LPA. This can be either (1) as soon as the form is registered, and also when you don’t have mental capacity or (2) only when you no longer have mental capacity. You also have the opportunity to provide your Attorney(s) with instructions and preferences, giving you the ability to set out your wishes at the time of making the LPA. This makes LPAS more flexible for Donors and gives them the peace of mind that their LPA is registered and ready for when they need their Attorney(s) to act for them.
To summarise, whilst an Enduring Power of Attorney may be still valid, it will have been made a minimum of 15 years ago and therefore it would certainly be a good idea to review your Enduring Power of Attorney and ensure that it still meets your needs. At the same time considering whether you would like to make an LPA for your health and welfare matters.
Every case, of course, depends on its own circumstances so always take legal advice from a trusted professional about your own set of circumstances.
For further information or if you are considering making LPAs please contact Stacey Ashworth on 01692 581231 or s.ashworth@capronandhelliwell.co.uk.
This article aims to supply general information, but it is not intended to constitute advice. Every effort is made to ensure that the law referred to is correct at the date of publication and to avoid any statement which may mislead. However, no duty of care is assumed to any person and no liability is accepted for any omission or inaccuracy. Always seek specific advice.