Understanding the Enduring Power of Attorney in England: A Comprehensive Guide

Thinking about what happens if you can't make your own decisions anymore can be a bit scary. But sorting out an enduring power of attorney in England can give you real peace of mind. It's all about making sure your wishes are followed and your affairs are looked after, no matter what life throws your way. This guide will walk you through everything you need to know about this important legal document.

Key Takeaways

• An Enduring Power of Attorney (EPA) is an older type of document, but existing ones are still valid in England.

• EPAs only cover money and property matters, not health and welfare decisions.

• Lasting Power of Attorney (LPA) replaced EPAs and offers broader powers, covering both financial and health decisions.

• Having a power of attorney helps make sure your decisions are respected if you can't make them yourself.

• The Office of Public Guardian (OPG) and the Court of Protection are the main bodies that oversee powers of attorney in England.

Understanding the Enduring Power of Attorney in England

The Historical Context of Enduring Power of Attorney

Before Lasting Power of Attorney (LPA) became the standard, there was the Enduring Power of Attorney (EPA). Think of it as the older model. EPAs were the go-to legal document before 2007 for people wanting to give someone else the power to manage their affairs. They've been superseded, but it's important to understand where they came from. The Mental Capacity Act 2005 brought LPAs into the picture, changing the landscape of power of attorney in England.

Key Distinctions from Lasting Power of Attorney

So, what's the difference? Well, EPAs, created before October 1, 2007, are still valid, but you can't make new ones now. EPAs only cover property and financial matters, not health and welfare decisions. If an attorney under an EPA wants to make healthcare decisions, they need to ask the Court of Protection for permission. LPAs offer more comprehensive protection and flexibility. Here's a quick comparison:

• Scope: EPAs are limited to property and finances, while LPAs can include health and welfare.

• Creation: You can't create new EPAs, but you can still create LPAs.

• Registration: EPAs need to be registered with the Office of the Public Guardian when the donor starts to lose mental capacity. LPAs have a different registration process.

Validity and Limitations of Existing Enduring Power of Attorney

Existing EPAs are still recognised, which is good news if you have one. They remain valid even if the person who made it (the donor) loses mental capacity. However, there are limitations. An EPA ends if the donor cancels it or if they die. Also, remember that EPAs only cover financial decisions. If broader decision-making powers are needed, an LPA might be a better fit.

It's worth noting that while EPAs are still legally sound, they don't offer the same level of protection and flexibility as LPAs. If you're considering setting up a power of attorney now, an LPA is the way to go.

The Importance of Establishing a Power of Attorney

It's easy to put off thinking about things like getting older or what happens if you can't make decisions for yourself. But, honestly, setting up a Power of Attorney is one of those things you'll be grateful you did. It's about making sure your wishes are respected and your affairs are handled the way you want, even if you can't be the one doing it.

Safeguarding Future Decision-Making

Having a Power of Attorney in place means you get to choose who you trust to make decisions for you if you're ever unable to. This could be due to illness, an accident, or anything else that affects your mental capacity. It's about maintaining control, even when you can't physically or mentally be in control. It gives you peace of mind knowing someone you trust has your back. Think of it as a safety net for your future.

• Choosing your attorney allows you to specify preferences.

• It ensures your values are upheld in decision-making.

• It provides a clear path for handling your affairs.

Avoiding Legal Complications and Delays

Without a Power of Attorney, things can get messy. If you lose capacity without one, your family might have to go through the Court of Protection to get a deputyship through the court. This can be a long, stressful, and expensive process. A Power of Attorney avoids all that hassle. It streamlines the process and makes it much easier for your loved ones to manage your affairs. It's about saving them time, money, and a lot of unnecessary stress during what is already a difficult time. It's a practical step that can prevent a lot of headaches down the line.

Ensuring Wishes are Respected

A Power of Attorney isn't just about who makes decisions; it's about how those decisions are made. You can outline your specific wishes and preferences in the document, ensuring your attorney acts in accordance with them. This is especially important for things like healthcare decisions or financial matters. It's about making sure your voice is still heard, even when you can't speak for yourself. It's a way to maintain your autonomy and ensure your understanding decision-making powers are respected, even when you're not in the driving seat. It's about having the final say, even when you can't physically say it yourself.

Setting up a Power of Attorney is a bit like writing a will for your life while you're still living it. It's about taking control of your future and making sure your wishes are respected, no matter what happens. It's a gift to yourself and your loved ones, providing peace of mind and security for the years to come.

Different Types of Power of Attorney in England

Okay, so when it comes to Power of Attorney, it's not a one-size-fits-all kind of deal. There are actually a few different types you can get in England, each with its own purpose. It's worth getting your head around them so you know what's what.

Lasting Power of Attorney Explained

A Lasting Power of Attorney (LPA) is a legal document that lets you choose someone to make decisions for you if you can't make them yourself. There are two main types:

• Property and Financial Affairs: This lets your attorney manage your money and property. They can pay bills, manage investments, even sell your house if needed. It's pretty broad. If you need to manage financial affairs, this is the one to go for.

• Health and Welfare: This covers decisions about your healthcare and personal welfare. Things like where you live, what you eat, and what medical treatment you receive. This only comes into play if you lack the capacity to make these decisions yourself.

• It's important to note that you can appoint different attorneys for each type of LPA, or the same person for both. You can also specify how they should make decisions – jointly, severally, or a mix of both.

Think of an LPA as a safety net. It's there in case something happens and you need someone you trust to step in and make decisions for you. It's about planning ahead and making sure your wishes are respected.

General Power of Attorney for Specific Needs

Now, a General Power of Attorney is a bit different. It's more for specific situations or a limited time. Say you're going abroad for a while and need someone to handle your banking. You can give them a General Power of Attorney to do that. It's useful, but it stops being valid if you lose mental capacity. The duration of a General Power of Attorney depends on the terms specified in the document.

Enduring Power of Attorney: A Legacy Document

Enduring Power of Attorney (EPA)? That's the old-school version. They were replaced by LPAs back in 2007, but if you made one before then, it's still valid. The catch is, EPAs only cover property and financial decisions. If you want someone to make healthcare decisions for you, you'll need an LPA. If you have an existing EPA, it's worth checking it over and maybe considering getting an LPA to cover all bases. EPAs created before 1st October 2007 can still be used in England, but new EPAs cannot be created now. An EPA ends if the donor cancels it or if they die.

The Scope of Authority for an Appointed Attorney

Being appointed as an attorney is a big deal. It means you have the power to make decisions for someone else, but it's not a free-for-all. There are rules and limits you need to understand.

Understanding Decision-Making Powers

When you're an attorney, you can make decisions about the donor's finances, their health, or both, depending on what the Lasting Power of Attorney (LPA) says. For finances, this could mean paying bills, managing investments, or even selling property. For health, it could involve deciding on medical treatment or care arrangements. The specific powers you have are outlined in the LPA document itself, so read it carefully.

Limitations on Attorney Actions

Even with a power of attorney, there are things you can't do. You can't make decisions that are against the law, and you can't act in a way that benefits you more than the donor. You also can't make decisions about things that the donor can still do themselves, if they have the mental capacity. It's about supporting them, not taking over completely. You also need to keep good records of everything you do, especially when it comes to money. This helps to show that you're acting responsibly and in the donor's best interests.

Acting in the Donor's Best Interests

This is the golden rule. Everything you do as an attorney should be what's best for the donor. This means:

• Considering their wishes and feelings. If you know what they would have wanted, try to follow that. If not, think about what they would likely want, based on their values and beliefs.

• Involving them in decisions as much as possible. Even if they can't make the final decision, talk to them about it and listen to their views.

• Avoiding conflicts of interest. If a decision could benefit you personally, you need to be extra careful to make sure it's also in the donor's best interests. If in doubt, get advice from a solicitor.

It's important to remember that being an attorney is a position of trust. You have a legal and moral duty to act honestly and responsibly. If you're not sure about something, seek advice. The Office of the Public Guardian can offer guidance, and a solicitor can provide legal advice. Don't be afraid to ask for help – it's better to be safe than sorry.

When a Power of Attorney Ceases to Be Valid

A Power of Attorney isn't a document that lasts forever. It's a bit like a contract that has specific end conditions. People often think that once it's set up, that's it for life, but that's not really the case. There are several situations that can bring it to an end, some are planned, and others just happen. It's good to know what these are, whether you're the one making the Power of Attorney or you've been appointed as an attorney for someone else.

Impact of the Donor's Passing

This is the most definite end point for any Power of Attorney. The moment the person who made the document (the donor) passes away, the attorney's power is immediately cancelled. It doesn't matter if it's a Lasting Power of Attorney or an older Enduring Power of Attorney. The attorney's authority does not continue after death; the Will and the appointed executors take over from that point. The attorney can no longer access the donor's bank accounts or manage their property. Their job is done. They will need to send a copy of the death certificate to the Office of the Public Guardian if the LPA was registered, and to any banks or organisations they were dealing with.

Revoking a Lasting Power of Attorney

Sometimes, the donor might just change their mind. As long as they still have the mental capacity to make their own decisions, they are perfectly entitled to cancel or 'revoke' their Lasting Power of Attorney. It's not as simple as just tearing up the paper, though. There's a formal process to follow to make sure it's done correctly.

1. You need to make a written statement called a 'deed of revocation'.

2. This statement must be signed by you (the donor) and a witness.

3. You have to inform your attorney(s) that you are cancelling their power.

4. If the LPA is registered with the Office of the Public Guardian (OPG), you must send them the original LPA and the deed of revocation.

It's a serious step to take, and it's important to be sure about the decision. Taking away this safety net means you'll need to think about what happens if you need help in the future.

Circumstances Leading to Automatic Termination

Besides the donor passing away or actively revoking it, a Power of Attorney can end automatically for other reasons. It's a bit like a built-in failsafe. These situations often involve the attorney rather than the donor. For instance, a valid Lasting Power of Attorney can be affected by major life events.

Here are a few common scenarios:

• Divorce or Dissolution: If your attorney is your husband, wife, or civil partner and you get divorced or dissolve the partnership, their appointment is automatically cancelled.

• Attorney's Incapacity: If the attorney loses their own mental capacity, they can no longer act for you.

• Attorney's Death: If your sole attorney passes away, the Power of Attorney will end unless you appointed a replacement.

• Bankruptcy: If an attorney for a Property and Financial Affairs LPA goes bankrupt, they can usually no longer act.

Termination Event	Affects Property & Finance LPA?	Affects Health & Welfare LPA?
Attorney becomes bankrupt	Yes	No
Donor and Attorney divorce	Yes	Yes
Attorney loses mental capacity	Yes	Yes

Overriding and Challenging a Power of Attorney

The Role of the Office of Public Guardian

The Office of Public Guardian (OPG) plays a vital role in supervising attorneys and deputies appointed under powers of attorney and court orders. Their main job is to help people stay in control of their decisions about health and money. They can investigate concerns about how an attorney is acting, especially if there are worries about financial abuse or decisions not being in the donor's best interests. The OPG can also apply to the Court of Protection if they believe an attorney is acting improperly. It's good to know that family members can contact the OPG if they disagree with an attorney's actions, but the final decision rests with the OPG.

Intervention by the Court of Protection

The Court of Protection is there to make decisions for people who lack the mental capacity to do so themselves. This includes cases where a power of attorney is in place, but there are concerns about its use. The Court can step in to make specific decisions, remove an attorney, or even revoke the power of attorney altogether. This might happen if the attorney isn't acting in the donor's best interests, or if there's evidence of fraud or undue pressure. The Court of Protection was set up by the Mental Capacity Act 2005 and appoints people (deputies) to make decisions on behalf of others when they cannot do so themselves. The OPG and the Court of Protection are part of the same process.

Disputes and Resolution Processes

Disputes can arise regarding a power of attorney, whether it's about the attorney's decisions, their conduct, or even the validity of the document itself. If you want to challenge an attorney on prescribed grounds, you have to fill out a notification form too. Here's a few things to keep in mind:

• Mediation: This can be a good way to resolve disagreements amicably, with a neutral third party helping to find a solution.

• Objection to the OPG: If you have concerns about a registered Lasting Power of Attorney, you can raise them with the OPG. They will investigate and take action if necessary.

• Application to the Court of Protection: For more serious disputes, or if the OPG can't resolve the issue, you can apply to the Court of Protection for a ruling.

Challenging a power of attorney can be complex, so it's often a good idea to seek legal advice. A solicitor can help you understand your rights and the best course of action.

To challenge an attorney on prescribed grounds, you have to fill out a notification form too. You do not have to pay any fees if you object and are an attorney or a relevant person who needs to be told.

Sometimes, things change, and you might need to challenge or even cancel a Power of Attorney. It's a big step, and it's important to know your rights and the proper way to go about it. If you're thinking about this, or just want to understand more, we can help. Find out how to get a free quote for our services on our website.

Wrapping Things Up

So, there you have it. Setting up an Enduring Power of Attorney, or an LPA these days, is a pretty big deal. It's all about making sure your choices are looked after, even if you can't speak for yourself later on. Thinking about this stuff now, while you're able, just makes good sense. It helps avoid a lot of headaches and arguments for your family down the line. Getting your affairs sorted with one of these documents means you've got a plan, and that's always a good thing. It gives everyone peace of mind, knowing someone you pick will be there to handle things just how you'd want them done.

Frequently Asked Questions

Does a Lasting Power of Attorney stay valid after death in the UK?

No, in the UK, a Lasting Power of Attorney (LPA) stops being valid once the person who made it (the donor) passes away. It's important to have a Will to sort out what happens after someone dies.

How can you end a lasting power of attorney?

If you are the person who made the LPA and you can still make your own decisions, you can cancel it. You need to send the original LPA to the Office of the Public Guardian and fill out a special form called a 'deed of revocation'. This form must be signed and witnessed. An LPA can also end if the person acting as attorney can no longer make good decisions, or if they divorce the person who made the LPA.

Is Enduring Power of Attorney the same as Lasting Power of Attorney?

Before 2007, an Enduring Power of Attorney (EPA) was the standard. Lasting Power of Attorney (LPA) took its place when a new law came in. EPAs made before October 2007 are still good, but you can't make new ones. EPAs only cover money and property, not health. An EPA is still valid if the person loses their mental ability. However, if the attorney wants to make health decisions, they need special permission from the Court of Protection. An EPA ends if the person cancels it or dies.

What is an Ordinary Power of Attorney?

A General Power of Attorney allows someone to handle your money, but only while you can still make your own decisions. It's usually for short periods, like if you're in hospital or on holiday. Unlike an LPA, a General Power of Attorney automatically ends if you lose the ability to make decisions for yourself.

Who can override a Power of Attorney in the UK?

The Office of the Public Guardian (OPG) or the Court of Protection are the only ones who can remove a Power of Attorney in the UK. An LPA is a legal paper, so only the person who made it can cancel it through the OPG if they can still make decisions, or the Court of Protection can step in if needed. Family members can tell the OPG if they don't agree with what an attorney is doing, but the OPG makes the final call.

Who has Power of Attorney if there’s no Will?

When someone passes away, their Power of Attorney stops working. This means if there's no valid Will, someone will need to apply to be an 'administrator' or 'executor' to handle the person's affairs. Even with this power, the estate might still need to go through a legal process called probate.