Compare the old Enduring Power of Attorney and the new Lasting Power of Attorney

The following table details the main differences between the old EPA and the new LPA. As you will see, the new LPA is far more comprehensive and has far more safeguards built in to protect you.

It is also a much longer document (25 pages as opposed to 4 pages for the old EPA) but simple online software 'protects' you from the complexities of the document, filling it in for you based on your answers to a few simple questions.
 

ENDURING Power of Attorney (EPA)

 

LASTING Power of Attorney (LPA)

Making an EPA

An EPA


  • Must be set out in the legally required format.
  • Must  have been made & signed by donor and ALL Attorneys before 1st October 2007.
  • Therefore can no longer be made.
  • If  made before 1st October 2007, continues to be valid after 1st October 2007.

 

Making an LPA

An LPA


  • Can now be made. 
  • Must be set out in the legally required format (Don't worry - our software does this for you).
  • As a safeguard , has a 'certificate' section that must be completed by an independent person to confirm that you, as the donor, understand the power and importance of the LPA and that you are not under any pressure to make it (again, don't worry: we give you clear instructions on how to do this).
  • As a second safeguard , can contain the names of anyone you as the donor want to be notified of any application to register the LPA. If there is no one to be notified, you must say so and have a second certificate.

 

Types of EPA

There is only ONE  type of EPA:

  • You appoint Attorneys to take care of your property and affairs.

 

There is therefore only ONE  type of EPA document.

Types of LPA

There are TWO  types of LPA:

  • The LPA - 'Property and Affairs' - You appoint Attorneys to take care of your property and affairs.
    This effectively replaces the old EPA.
  • The LPA - 'Personal Welfare' - You appoint Attorneys to take care of your personal welfare and healthcare.
    This is a completely new type of document - although to some extent it can be said to replace the old so-called 'Living Will'.

There are therefore TWO  types of LPA document: one separate  document for each type of LPA. Our service offers both .

If all Attorneys are unable to Act

- or if you appoint your Attorneys to act 'Jointly' and just one of them is unable to act -

The EPA ceases immediately.

If all Attorneys are unable to Act

You can appoint Replacement Attorneys when you create the LPA - ensuring that the LPA continues  to be valid.

Decisions the Attorney(s) can make

Unless you put limitations on the EPA, the Attorney(s) can make exactly the same types of decision about your property and financial affairs as you can when you have the mental capacity to do so. But the Attorney(s) cannot make decisions about your personal welfare.

Decisions the Attorney(s) can make

Depending on the type of LPA you as a donor make and any limitations you include, your Attorney(s) can make decisions about your:

  • Property and financial Affairs and/or
  • Personal Welfare (including giving or refusing consent to treatment). Your Attorney(s) will only be able to make health and welfare decisions for you if you lose the capacity to do this for yourself.

Note that the two options above are catered for by the two  separate LPA documents: 'LPA - Property and Affairs' and 'LPA - Personal Welfare' mentioned in the 'Types of LPA' section above.

When the instrument comes into operation

An EPA comes into operation as soon as it has been completed and signed by you, your Attorney(s) and the witnesses, unless you put in a limitation to say that the EPA will not come in to operation until you lose mental capacity or that it will start from a future specified date.

If you lose mental capacity in the future, your EPA will remain legally effective as long as your Attorney(s) registers it.

When the instrument comes into operation

Your Attorney(s) cannot act under an LPA unless it is registered with the Public Guardian.

The LPA can be registered with the Public Guardian at any time either before you as the donor lose the mental capacity to make decisions for yourself or when your attorney(s) have reason to believe that this has happened.

The Attorney(s) you have appointed to make personal welfare decisions can only use this power once the LPA has been registered and provided that you cannot make the required decision for yourself.

The duty of the Attorney(s)

With an EPA your Attorney(s) have a duty to apply to the Court of Protection to register the EPA if they have reason to believe that you have lost or are losing the mental capacity to make the necessary decisions for yourself. Under an EPA your Attorney(s) have only a common law duty to act in your best interests.

The duty of the Attorney(s)

Your Attorney(s) under an LPA have a statutory duty to act in your best interests.

The duties of your Attorney(s) are also set out in the Mental Capacity Act Code of Practice and they must be aware of this and follow the guidance provided by the Code.

The donor’s ability to make decisions

Until your EPA is registered, both you and Attorney(s)(s) have equal authority to make decisions about your property and financial affairs.

If the EPA is registered, in theory you can still make decisions about your property and financial affairs, if you are capable of making them at the time.

The donor’s ability to make decisions

As the donor, you can carry on making decisions, provided you have the capacity to do so.

The Attorney(s) can only make personal welfare decisions that the donor is incapable of making, or which they reasonably believe the donor is incapable of making, at the time (Note: 'LPA - Personal Welfare' only).

Registering the power

It is your Attorney(s)(s) duty to apply to the Court of Protection to register your EPA when they have reason to believe that you have lost or are losing the mental capacity to make the necessary decisions for yourself.

Before applying to the Court, the Attorney(s)(s) must give written notice of the application to:

  • you as the donor,
  • any co-Attorney(s) and
  • at least three of your closest relatives.

Any of those who receive notice of the application to register can object to the registration.

Registering the power

Either you as donor or your Attorney(s) can apply to the Public Guardian to register your LPA. The application can be made at any time after the LPA has been executed (i.e. signed and witnessed).

Before applying to register the LPA, whoever is doing it must notify the persons named by you as the donor as being entitled to receive notification of the application.

The Public Guardian will give notice that the application has been received to

  • you as the donor, and
  • the Attorney(s)

Your relatives will not be automatically notified of the application to register the LPA unless you have named them as being persons who should be given notice.

As well as your Attorney(s) and the persons you have said should be notified, you as the donor can also object to the LPA being registered.

Revoking (cancelling) the power

As long as you have the mental capacity to do so, as the donor you can revoke or cancel an unregistered  EPA at any time without the need to make an application to the Court of Protection

The Court of Protection must confirm any revocation or cancellation of a registered  EPA. Before such a decision is made, as the donor you will need to satisfy the Court that you understand who the attorney(s) are and the powers you have given them. You will also need to show the Court that you understand the effect that cancellation will have and why the EPA needs to be cancelled.

An EPA registered or unregistered is also revoked if you or the attorney(s) are made bankrupt.

Revoking (cancelling) the power

As the donor you can revoke or cancel your LPA as long as you have the mental capacity to do so. If there is any dispute about whether your LPA has been cancelled or ended, the Court of Protection has the authority to make a decision.

If your attorney is your spouse or civil partner, the dissolution or annulment of a marriage or a civil partnership will end their appointment or revoke the power, unless you have specifically stated in your LPA that this is not to happen.

An 'LPA - Property and Affairs' is revoked if you or the attorney(s) are made bankrupt, but bankruptcy does not terminate an 'LPA - Personal Welfare'.

 
Acknowledgement: A great deal of the information on this page has been based on a short document produced by the Office of the Public Guardian (Crown copyrighted and hence "may be reproduced free of charge in any format or medium provided it is reproduced accurately and not used in a misleading context".)

 
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