You may have clients who have an Enduring Power of Attorney (EPA) in place. EPA’s were replaced by Lasting Power of Attorneys (LPA’s) from 1st October 2007 so it’s not been possible to create EPA’s since then.
Your clients may ask you, if they have an EPA in place, should they replace it with an LPA? If the EPA was drafted and signed correctly and your clients wishes remain the same, there may not be a need to replace the existing EPA. However, that’s not to say there aren’t good reasons for considering an LPA.
- EPA’s only cover financial affairs
An EPA only deals with finances and allows attorneys to make decisions about selling the donors home, making gifts and managing bank accounts and bills. At the time the EPA was made it wasn’t possible to appoint attorneys to make decisions about personal welfare. To give someone legal authority to make decisions about health, care and life sustaining treatment a Health and Welfare LPA needs to be in place.
- Creation of LPA’s is more secure
It’s considered that that the process of making an LPA is more secure as there are more safeguards integrated within the process. For an LPA to be valid it must be signed by a Certificate Provider who can confirm the donor has mental capacity and is not under any undue coercion. This is important for the client as it provides more protection for the client if the LPA is challenged later and an attempt is made to set aside the LPA on the grounds of lack of capacity when the LPA was made.
- LPA’s allow replacement attorneys to be appointed
Under an EPA it wasn’t possible to name replacement attorneys so if the original attorneys were unable or unwilling to act the EPA would cease. Remember, it’s not possible to amend an existing EPA or create a new EPA. If no attorney is able to act and no one is in place to make decisions for the client, an application would need to be made to the Court of Protection for deputyship which may not be given to the person the client would have preferred.
- More flexibility
LPA’s allow for a wider range of options for wishes to be known to attorneys. Under an EPA restrictions were available on how attorneys could make decisions which is now known as “instructions” within an LPA. However, in addition, an LPA allows the client to state “preferences” which are not binding on the attorneys but provide greater guidance when other people are making decisions for the client.
- Stronger supervision
Unless there was a restriction included in the EPA, it only needed to be registered once the donor was starting to lose or had lost capacity. This unfortunately left the EPA open to abuse but unscrupulous attorneys and was part of the reason why LPA’s were created. An LPA for financial affairs can be used either whilst the donor still has capacity or after capacity has been lost (the donor can state which) but it must be registered with the Office of Public Guardian before the Attorney can use it.
If you have a client with an EPA and you’re not sure if it still suits their needs then call us on 01522 500823 or email enquiries@btwc.co.uk and we can explore the clients situation with you.
Source: Society of Will Writers.