Enduring vs Lasting Power of Attorney: Understanding the Key Differences

Planning for the future is something we all need to do, and when it comes to your health and finances, having the right legal documents in place can make a big difference. You might have heard terms like 'Enduring Power of Attorney' and 'Lasting Power of Attorney' thrown around. They sound similar, and in a way, they are, as both let someone you trust make decisions for you if you can't. But there are some important differences, especially concerning when they were set up and what they cover. Understanding the enduring and lasting power of attorney difference is key to making sure your wishes are followed.

Key Takeaways

• An Enduring Power of Attorney (EPA) was the older type, mainly for financial and property matters, and can only be used if set up before October 2007. It remains valid if you already have one.

• A Lasting Power of Attorney (LPA) replaced the EPA and is more flexible. You can set one up now, and it can cover both financial matters and health/welfare decisions.

• The main enduring and lasting power of attorney difference is that LPAs can cover health and welfare decisions, which EPAs cannot.

• EPAs became valid when signed but needed registration with the Office of the Public Guardian (OPG) once the person lost capacity. LPAs need to be registered with the OPG before they can be used at all.

• If you don't have an EPA or LPA in place and lose capacity, your loved ones might have to go to court to get permission to manage your affairs, which is a longer and more complicated process.

Understanding The Core Differences

When you're thinking about who might look after your affairs if you can't, it's easy to get a bit confused between the old and new ways of doing things. We're talking about Enduring Powers of Attorney (EPAs) and Lasting Powers of Attorney (LPAs). They sound similar, and in a way, they are, but there are some pretty big differences, especially when they were set up.

The Shift From Enduring To Lasting Powers Of Attorney

For a long time, if you wanted someone to manage your money and property if you became unable to, you'd set up an Enduring Power of Attorney, or EPA. This was the standard way to go. However, the law changed back in October 2007 with the Mental Capacity Act. This brought in the Lasting Power of Attorney, or LPA, which is a bit more flexible and covers more ground. Think of it as an upgrade, designed to offer more protection and cover a wider range of decisions. While EPAs created before that date are still valid, you can't make new ones now. It’s important to know which one you have, or if you need to set one up, which one is right for you.

Key Distinctions In Scope And Application

The main difference really boils down to what each document can actually do. An EPA was pretty much all about your finances and property. It allowed your chosen attorney to handle your bank accounts, investments, and property, but that was about it. It didn't extend to decisions about your health or personal welfare. That's where the LPA really steps in. An LPA can cover both your financial affairs and your health and welfare decisions. This means your attorney could make decisions about your medical treatment, where you live, and your day-to-day care, as well as managing your money. It's a much broader authority.

When Each Type Of Power Of Attorney Was Introduced

Knowing the dates is pretty important here. As mentioned, the Enduring Power of Attorney was the go-to document for financial matters for many years. It was replaced by the Lasting Power of Attorney when the Mental Capacity Act came into effect on 1st October 2007. So, if your document was signed and dated before this date, it's likely an EPA. If it was created on or after this date, it will be an LPA. This distinction is key because the rules and the scope of what each document allows are different. For example, an EPA only needed to be registered with the Office of the Public Guardian if you lost mental capacity and it was actually needed. An LPA, however, needs to be registered from the outset to be valid, which means your chosen attorney can act on it sooner if necessary. This registration process is a vital step for LPAs to be valid.

The shift from EPAs to LPAs wasn't just a name change; it was a significant legal update aimed at providing clearer guidelines and broader powers for those appointed to act on someone's behalf, particularly when it comes to personal care and medical decisions.

Enduring Power Of Attorney: A Financial Focus

Before the introduction of Lasting Powers of Attorney (LPAs) in 2007, the Enduring Power of Attorney (EPA) was the go-to document for managing financial affairs if someone lost mental capacity. Think of it as a predecessor, specifically designed to handle your money matters when you couldn't.

What An Enduring Power Of Attorney Covers

An EPA is pretty much all about your finances. It allows you to appoint someone you trust – your attorney – to make decisions about your money and property. This could include things like:

• Paying your bills and managing your bank accounts.

• Dealing with your investments and pensions.

• Selling or buying property on your behalf.

The key thing to remember is that an EPA only covers financial and property matters. It doesn't give your attorney any say over your health or personal welfare. That was a separate arrangement, or in later years, covered by an LPA.

Limitations Of Enduring Powers

While useful, EPAs do have their limits. As mentioned, they don't extend to health and welfare decisions. This means if you had an EPA, and later became unable to make decisions about your medical treatment or where you live, your EPA attorney couldn't step in for those specific areas. You'd need a separate document for that, or an LPA which covers both.

Another point is that you can't create a new EPA anymore; they were replaced by LPAs. However, if you made one before October 2007, it's still valid. This means many people are still operating under an EPA for their financial affairs. It's worth checking if your pre-2007 EPA still meets your needs, especially if your circumstances have changed significantly since it was set up. You can find out more about EPAs and LPAs and their differences.

Validity Of Pre-2007 Enduring Powers

If you've got an EPA that was signed and dated before 1st October 2007, it's still legally binding. You don't automatically need to switch to an LPA, even though LPAs are now the standard. The attorney appointed under your EPA can continue to act on your behalf regarding your financial affairs if you lose mental capacity. However, there are specific requirements for an EPA to be valid:

• It must clearly state your intention for the powers to continue even if you lose mental capacity.

• Your attorney must sign the document to agree to take on the role.

• A solicitor or other authorised person must witness the signing and confirm they've explained the document to you.

It's important to note that if you've already lost mental capacity, you can't set up an EPA or an LPA. This is why planning ahead is so important.

If you're unsure whether your existing EPA is still suitable or if you need to consider an LPA, getting some professional legal advice is a good idea. They can help you understand your options and make sure your affairs are covered in the way you want.

Lasting Power Of Attorney: Comprehensive Authority

The Dual Nature Of Lasting Powers

A Lasting Power of Attorney, or LPA, is a bit of a game-changer compared to its older cousin, the Enduring Power of Attorney. Introduced in 2007, LPAs were designed to offer a more complete package for managing your affairs if you lose the ability to make decisions yourself. The big thing about LPAs is that they come in two distinct flavours, allowing you to choose what kind of authority you want to give to your chosen person, often called your attorney. You can set up one for just your finances, or just for your health and welfare, or you can do both. This flexibility means you can tailor the document to your specific needs and concerns.

It's really about making sure your wishes are followed, even when you can't voice them yourself. This means thinking ahead about who you trust and what decisions they might need to make on your behalf.

Health And Welfare Decisions Under An LPA

This part of an LPA is all about your personal care and medical treatment. It allows your appointed attorney to make decisions about things like where you live, who you have contact with, and what medical treatments you receive. They can even make decisions about life-sustaining treatment if you've specified this in the document. It's a really significant responsibility, and it's why choosing someone you absolutely trust is so important. This type of LPA only becomes active if you lose the mental capacity to make these decisions yourself. It's not something that can be used just because you're on holiday, for instance. The Office of the Public Guardian needs to be involved in the registration process before it can be used.

Property And Financial Affairs Under An LPA

This is the other half of the LPA coin, and it's pretty much what the old Enduring Powers of Attorney used to cover, but with some modern updates. It gives your attorney the power to manage your bank accounts, pay your bills, sell your property, and deal with your investments. You can choose for this to be active straight away, even if you still have full mental capacity, or you can set it to only become active if you lose that capacity. This can be really useful if you're planning a long trip abroad or if you just want the peace of mind knowing someone can step in if needed. Like the health and welfare LPA, this also needs to be registered with the Office of the Public Guardian before it can be used. It’s a powerful tool for ensuring your financial life continues smoothly, no matter what happens.

Activation And Registration Requirements

So, you've decided to get a Power of Attorney sorted. That's a smart move, really. But what happens after you've signed all the paperwork? It's not quite a done deal yet, is it? There are a few more steps to make sure it's actually usable when you need it.

When An Enduring Power Becomes Active

With an Enduring Power of Attorney (EPA), things are a bit different. You can actually use it while you still have your wits about you. This can be handy if you're going away for a while or just need a bit of help managing your finances. However, the real kicker is when you start to lose mental capacity. At that point, the EPA can't be used by your attorney until it's been registered. This is a really important distinction. If it's not registered, and you've lost capacity, your attorney is stuck. They can't do anything, which could cause all sorts of problems.

The Registration Process For Lasting Powers

For a Lasting Power of Attorney (LPA), the process is more upfront. You generally register it as soon as it's signed. This means it's ready to go from day one, should the worst happen. The registration involves sending the LPA to the Office of the Public Guardian (OPG). They check everything over to make sure it's all in order. It's a bit of a waiting game, and there's a fee involved, but it means your LPA is legally active and ready for use.

Here's a simplified look at the LPA registration:

• Application: The LPA document is sent to the OPG.

• Notification: Certain people you've named (people to notify) will be informed.

• Objections: There's a period where people can raise concerns or object.

• Registration: If all is well, the OPG registers the LPA.

• Activation: Once registered, your attorneys can use it when needed.

The Role Of The Office Of The Public Guardian

The Office of the Public Guardian (OPG) plays a pretty big role in all of this. They're the ones who oversee the registration of LPAs. They make sure that the people appointed as attorneys are suitable and that the documents are valid. They also keep a register of all LPAs. If you need to check the status of an LPA, or if your attorneys need to view it, they'll need an activation code, which is generated upon registration. This is a safeguard to ensure only authorised individuals can access the LPA details. It's a bit like a digital key, and it's single-use, so it's important to use it wisely.

It's worth remembering that if you have an older Enduring Power of Attorney, it might need to be registered with the OPG if you're starting to lose mental capacity. Not doing so can lead to significant delays and complications when your attorneys need to act.

Appointing Your Attorney

Choosing the right person, or people, to act as your attorney is a really big decision. This isn't someone you pick lightly, because they'll be making important choices on your behalf, especially if you've set up a Lasting Power of Attorney (LPA). It's about trust, reliability, and making sure they understand your wishes.

Choosing The Right Person For The Role

When you're thinking about who to appoint, consider their character. Are they sensible? Do they have good judgement? It's not just about who you like the most, but who you trust to act in your best interests, even if it's a difficult decision. Think about whether they'll be able to handle financial matters responsibly or make tough calls about your health and welfare. It’s also worth having a chat with them beforehand to make sure they’re happy to take on the role and understand what it involves. You can get a legally binding Power of Attorney form using LawDepot's template to get started.

Number Of Attorneys You Can Appoint

You're not limited to just one attorney. You can appoint a single person, or you can choose to have a team. If you appoint more than one, you'll need to decide how they should work together. Do they need to agree on every single decision, or can they act independently? For example, you might want them to make big decisions about your care jointly, but allow either of them to handle day-to-day things like paying bills on their own. It’s all about setting out your preferences clearly.

Here's a quick look at how you might structure your appointments:

• Sole Attorney: Just one person is appointed.

• Jointly: All attorneys must agree and sign off on every decision.

• Jointly and Severally: Attorneys can act independently, meaning any one of them can make decisions without the others.

The Attorney's Responsibilities And Duties

Once appointed, your attorney has a significant role. They must always act in your best interests. This means putting your needs before their own. They should also try to keep your affairs in order and make decisions that they believe you would make if you were able to.

It's really important that your attorney understands they have a legal duty to act in your best interests. This isn't just a friendly favour; it's a serious responsibility that comes with legal backing. They need to be mindful of this at all times when making decisions on your behalf.

Making An Informed Decision

So, you've been reading all about Enduring Powers of Attorney (EPAs) and Lasting Powers of Attorney (LPAs), and now it's time to figure out what's best for you. It's not exactly a spur-of-the-moment decision, is it? You really need to stop and think about what your future might look like, both health-wise and financially. It’s about making sure your wishes are respected, no matter what happens.

Assessing Your Future Needs

When you're thinking about this, it's helpful to consider a few things. What kind of help might you need down the line? Is it just about someone managing your bank accounts and bills, or do you also want someone to be able to make decisions about your medical treatment or where you live if you can't yourself? An EPA, which was the older type, mainly dealt with financial stuff. LPAs, the newer ones, cover both financial matters and health and welfare decisions. It's really about looking ahead and imagining different scenarios.

• Financial Management: Do you anticipate needing help with day-to-day banking, paying bills, or managing investments?

• Healthcare Decisions: Would you want someone to be able to consent to medical treatment on your behalf, or make decisions about your care plan if you're unable to?

• Living Arrangements: Is it important to you that someone can decide where you live, whether that's at home with support or in a care facility?

Considering Health And Financial Circumstances

Your current health and financial situation are big clues. If you're generally fit and well, and your finances are straightforward, you might lean towards one type. But if there are any existing health conditions, or if you have complex financial arrangements, that might push you towards a more comprehensive option. It’s also worth remembering that you can only set up these documents when you still have the mental capacity to understand what you're doing. Once that capacity is lost, you can't create a new one. This is why people often get them sorted well in advance.

Setting up a power of attorney is a proactive step to safeguard your autonomy and ensure your preferences are upheld. It provides a clear framework for decision-making, preventing potential disputes or the need for court intervention later on.

Seeking Professional Legal Guidance

Honestly, trying to figure all this out on your own can be a bit much. Solicitors who specialise in this sort of thing are really helpful. They can explain the differences in plain English and help you work out which type of lasting power of attorney is the right fit for your specific circumstances. They'll also make sure all the paperwork is done correctly, which is pretty important. It’s a bit like getting a second opinion on something important – it just gives you more confidence that you've made the best choice for your future.

Making An Informed Decision

Choosing the right path for your future is a big step. It's important to understand all your options clearly. We're here to help make that process simple and straightforward for you.

Ready to take the next step? Visit our website today to explore how we can assist you in making the best choices for your peace of mind. We offer a free quote to get you started.

So, What's the Takeaway?

Right then, we've gone through the ins and outs of Enduring Powers of Attorney and Lasting Powers of Attorney. It's pretty clear they both do a similar job – letting someone you trust step in if you can't manage things yourself. But, as we've seen, the main difference really boils down to what they cover and when they kick in. An EPA, if you've got one from before 2007, mostly sticks to your finances. An LPA, on the other hand, is the newer model and can cover your health and welfare too, which is a big deal. Deciding which one is right for you isn't always straightforward, and it really depends on your own situation. It's worth having a good think about it, and if you're not sure, chatting to someone who knows the legal side of things is probably a smart move. Getting this sorted means you can relax a bit, knowing your affairs will be looked after, just how you want them to be.

Frequently Asked Questions

What's the main difference between an Enduring Power of Attorney (EPA) and a Lasting Power of Attorney (LPA)?

Think of it like this: an EPA was for financial stuff and was used before 2007. An LPA, which came in after 2007, is more of a 'super-power' document. It can cover both your money matters and your health and care decisions. So, an LPA is generally more comprehensive.

If I made an EPA before 2007, is it still valid?

Yes, in most cases, if you set up an EPA before October 2007, it's still perfectly valid. You can keep using it for financial decisions. However, it won't cover health or care choices, which an LPA can do.

When does an LPA become active and usable?

An LPA for property and finances can be used as soon as it's registered, even if you're still able to make your own decisions. This can be handy if you need a bit of help managing your money. But, an LPA for health and welfare decisions can only be used when you've lost the ability to make those choices yourself.

Do I need to register my EPA or LPA?

An EPA doesn't need to be registered straight away; it's usually only registered when you start to lose your mental capacity and need it. However, an LPA needs to be registered with the Office of the Public Guardian as soon as it's signed, so it's ready to go if and when it's needed.

Can I appoint more than one person to help me with my Power of Attorney?

Yes, you can! With an LPA, you can appoint more than one person, called attorneys. You can decide if they have to agree on all decisions together, or if they can make decisions separately. With older EPAs, it was also possible to have multiple attorneys.

What happens if I don't have an EPA or LPA and can't make my own decisions?

If you haven't got a Power of Attorney in place and you lose the ability to make decisions, your family might have to go to a special court. This is called applying for a deputyship. It's a much longer, more complicated, and often more expensive process than setting up an LPA beforehand.