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What’s the difference between an enduring and lasting power of attorney?

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As a specialist Court of Protection solicitor, people often ask me what the difference is between an enduring power of attorney (EPA) and a lasting power of attorney (LPA). EPAs pre-date LPAs, which came into effect on the 1st October 2007. After this date, EPAs could no longer be made.

But there are some other important differences between the two, which I will explain in this article, as well as reasons why you might want an LPA, even if you already have an EPA.

Do I need an LPA if I already have an EPA?

No, if you have an EPA, it is not necessary to have an LPA, as any EPA signed before the 1st October 2007 will still be valid. However, you may wish to update this to an LPA, as this will give you more flexibility around the different authority you can give to people, as well as who you can appoint as an attorney.

The key differences between an enduring and lasting power of attorney

There are several differences between the two, which you should consider if you already have an EPA in place. If you do have an EPA, you should speak to an expert who will be able to review it to ensure it is still fit for purpose.

LPAs were introduced on the 1st October 2007 and allow for additional powers for different attorneys, including health and welfare LPAs, as well as property and financial affairs LPAs. Historically, an EPA only dealt with property and financial affairs and would not give someone permission to decide on the care you receive. You can read more about the different types of LPAs here.

EPAs do not allow you to appoint someone to take over as attorney, if the appointed attorney is no longer able to act as a result of losing capacity themselves or if they pass away. If this occurs, the EPA will no longer be valid.

An LPA, however, allows you to add replacement attorneys, should this happen. Therefore, an LPA will still be valid, even if your first appointed attorney can no longer act for you.

Another key difference is that an LPA allows you to choose whether or not you wish for it to be used following loss of mental capacity, a deterioration in your physical capacity, or both. EPAs, however, commonly contained restrictions which created problems in relation to this, meaning they could only be used if you lost mental capacity.

LPAs also require a certificate provider. This means that a third party must sign to confirm that the person making the LPA still has the mental capacity to make this choice themselves. This helps to protect people and remove the risks of giving power to others under undue influence or pressure.

What happens if I don’t have an EPA or LPA?

If something happens and you no longer have the mental capacity to make decisions yourself, if you do not have an EPA or LPA, there will be no one legally able to make decisions for you. In these circumstances, an application would need to be made to the Court of Protection to appoint a deputy. This can lead to a delay in making decisions and have an impact on things such as paying any bills or care costs, as well as decisions about the care you are receiving. As with an LPA, a family member or friend can be appointed as a deputy, as well as someone acting as a professional deputy.

If you would like further advice on an enduring or lasting power of attorney or applying to the Court of Protection to appoint a deputy if someone has lost capacity, contact our expert solicitor today who will be able to answer any of your questions.

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