We are often approached about people to ask whether the Enduring Power of Attorney that they set up before the law changed in 2007 is still valid. We set out below some typical questions that we are often asked, together with the answers.
What is an Enduring Power of Attorney (EPA)?
An EPA is a document which allows a person (known as the Donor) to appoint someone else (known as an Attorney) to manage their financial affairs on their behalf.
EPAs were replaced by Lasting Powers of Attorney (LPAs) on 1st October 2007 and although no new EPAs can now be created, EPAs created before this date are still valid. If you have an existing EPA, you don’t necessarily need to make a new LPA. EPAs however, only allow the Attorney to manage the Donor’s property and financial affairs.
There are on the other hand, two types of LPAs; one for property and financial affairs and another for Health and Welfare. It is possible for the donor to make either one, or both, types of LPAs.
If you have an EPA in place in connection with your Property and Financial affairs and you wish to appoint an Attorney to make decisions about your Health and Welfare when you are unable to do so yourself, you would need to make an LPA for Health and Welfare.
Can I make changes to my Enduring Power of Attorney?
Unfortunately, it is not possible to make changes to an EPA. If you wish to make a change, such as for example, appointing an additional Attorney, it is necessary to cancel your existing EPA and make a new LPA for Property and Financial Affairs.
A person can only make an LPA if they have the required mental capacity to do so, and where a person lacks the necessary mental capacity, an application must be made to the Court of Protection for a Deputy to be appointed to manage the affairs of the person lacking capacity.
Do I need to register my Enduring Power of Attorney with the Office of the Public Guardian (OPG)?
An EPA can be used by the Attorney without it being registered with the OPG, provided that the Donor still has capacity. It is only necessary for the EPA to be registered with the OPG if the Attorney believes that the Donor is, or is becoming, mentally incapable of managing their own financial affairs.
If the Donor has mental capacity but becomes physically incapable of managing their finances, they can instruct their Attorney to deal with financial matters on their behalf. This would involve the Donor or the Attorney providing the financial institutions with certified copies of the EPA who would then update their records to show that an Attorney had authority to manage the accounts.
Should you have any further questions in relating to Powers of Attorney then, please do not hesitate to get in touch with us.
For individual advice and assistance contact our Wills, Probate and Trusts Team to find out how we can help.
Lisa Moseley, Chartered Legal Executive, Wills, Trusts and Probate Team