LPAsAn Overview of Enduring Powers of Attorney

Enduring Powers of Attorney (EPAs) were the predecessors of Lasting Powers of Attorney (LPAs) and allowed a person to appoint attorneys to manage their financial affairs. Although EPAs have been replaced by LPAs since 1 October 2007, they remain valid if they were created before this date. Many clients still may have existing valid EPAs so it is vital to have knowledge of how they operate. This article provides an overview of EPAs, their creation and registration.

Creation and Validity of EPAs

To be valid, an EPA must have been signed by all parties before 1 October 2007. The donor must have had the mental capacity to make the EPA at the time of its creation. If the donor loses capacity after the EPA is signed, the attorney can still act, provided the EPA was executed before the cut-off date. If the EPA was not signed by this date it will not be valid.

Limitations and Considerations of EPAs

An EPA only allows attorneys to make decisions relating to the donor’s property and finances. Attorneys cannot make decisions relating to health and welfare decisions.

There is no option in an EPA to appoint replacement attorneys. Only one level of appointment could be included.

In contrast to an LPA, an EPA can be used before it’s registered if the donor still has mental capacity. This is providing there are no restrictions in the EPA preventing this.

If the donor loses have mental capacity, the EPA must be registered. The attorneys will need to register the EPA if they believe the Donor is becoming mentally incapable of managing their affairs.

Registration Process

The registration process for an EPA is more complicated than that for an LPA.

Firstly the attorneys will need to notify the donor, at least 3 relatives of the donor and any other attorneys if they are not jointly registering the EPA using the EP1PG form. Any individual in receipt of a notice may object to the registration of the EPA. The list of notifying people and the order of priority is extensive; however, the full list can be found on the Office of the Public Guardians’ EPA guidance.

The attorneys will then need to apply to the OPG to register the EPA using the EP2PG form. If no objections are raised by those notified, the OPG will register the EPA.

Reviewing Existing EPAs

If a client has an existing EPA, it should be reviewed to ensure it is still suitable for the client’s circumstances. If it is valid and still matches the client’s wishes, they could keep it in place. If they do wish to change the terms, for example add a new attorney, a new LPA for property and finance will need to be created.

As an EPA does not grant the attorneys power over health and welfare decisions, a new health and welfare LPA would be advisable.

There are other reasons why a donor may wish to replace their EPA with a property and finance LPA, these include:

• Appointment of replacement attorneys
• LPAs are governed by the Mental Capacity Act 2005, which provides a more modern and comprehensive legal framework. It also includes clearer guidelines on the duties and responsibilities of attorneys, as well as safeguards to protect the donor
• LPAs have a straightforward registration process when compared to EPAs
• If the original EPA is lost or was never registered, and only an uncertified photocopy is available, it cannot be used

Conclusion

While EPAs are no longer available for creation, they continue to play a role for those who established them before the 2007 cut-off. Understanding the nuances of EPAs, including their registration and limitations, is crucial for attorneys managing a donor’s affairs

 

If you have subscribed to our Quiz Membership 2025, please find this article’s quiz here. You must be signed into the partner area of our website to access this.

 

Photo by Enrico Mantegazza on Unsplash