I have heard about Enduring Powers of Attorney and Lasting Powers of Attorney – do I need both?
Since 1 October 2007, it has not been possible to make new Enduring Powers of Attorney (EPAs). Those made and signed before that date can still be used and allow those appointed as attorneys to make decisions about the property and financial affairs of the donor (the person who made the EPA). Assuming the document is executed correctly and permission is given by the donor, the EPA can be used straight away and does not need to be registered with the Office of the Public Guardian. Registration is only required when the donor loses their mental capacity.
Anyone now wishing to appoint individuals they trust to make decisions on their behalf with regards to their property and financial affairs must make a Lasting Power of Attorney (LPA) if they do not have an EPA already in place. The key difference from EPAs, however, is that LPAs must be registered before they can be used at all.
Most people with EPAs in place will not need a new LPA for property and financial affairs as they cover the same decisions. Despite this, it is worth checking to see whether all relevant powers have been granted to your attorneys, such as the power to delegate to a specialist discretionary fund manager in respect of investments. If this is not contained in an existing EPA, the power cannot be added at a later date and a new LPA for property and financial affairs would be needed as your attorneys could only otherwise instruct investment managers on an advisory basis.
There is, however, a second type of LPA dealing with health and welfare matters. Such decisions, including choosing the donor’s medical treatment or where they should live, are not covered by an EPA or LPA for property and financial affairs. Unlike with an EPA or LPA for property and financial affairs, the LPA for health and welfare matters can only be used when the donor has lost capacity.
Unless power is granted to attorneys to make such decisions, local authorities and medical professionals are likely to have the final say in respect of health and welfare matters. If you wish to ensure that those you trust and who know you better can make these types of decisions, it is worth putting this second type of LPA in place.
Of course, if you do not have either an EPA or LPAs in place and you lose the ability to make decisions for yourself in the future, an application would need to be made to the Court of Protection for a deputy to be appointed on your behalf. This is a lengthy and costly process and you ultimately lose control over who is appointed and who is effectively stepping into your shoes.