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I already have an Enduring Power of Attorney, do I need a Lasting Power of Attorney too?

The titular question is one that we are often asked and the short answer is ‘maybe’.  As this answer alone isn’t particularly helpful, we set out below some of the reason why you may wish to make a Lasting Power of Attorney (LPA), even if you already have an Enduring Power of Attorney (EPA).

Existing EPAs

From 1 October 2007 new EPAs could not be made.  However, if you made one before that date, it remains valid and can still be used.

Differences in registration requirements

An EPA can be used without registration, whilst you have mental capacity to make decisions in relation to your property and finances.  However, your attorneys must temporarily stop using the EPA and register it with the Office of the Public Guardian if you start to lose or have lost mental capacity.  This vague description can leave attorneys confused about when the right time is to register an EPA.  Because the EPA is not registered at the outset, it also means that there is a period of time whilst it is being registered, that the attorneys have no authority to act.  With registrations currently taking a minimum of 8-10 weeks, this can cause problems for the attorney. By contrast, an LPA must be registered before it can be used and in most cases is registered immediately after execution, in order that it is ready and waiting, avoiding any delay, if your attorneys are required to step in and act on your behalf.  Whilst registration of an LPA currently takes longer than an EPA (an estimated 20 weeks), if it is registered at the outset, the wait is less of an issue as you are unlikely to be needing to rely on it imminently.

As EPAs only need to be registered if you lose mental capacity, often, if there is a problem with the document, it is only discovered at this point. An example of a common problem is when attorneys have been appointed jointly and one of them has died.  If the document is invalid and the Office of the Public Guardian can’t register it, you will not be able to make an LPA instead, as by this point, you will have lost capacity.  Because of this, it is worth reviewing your EPA and seeking reassurance that it is valid and still workable, even if you don’t wish to replace it with an LPA.

Replacement attorneys

Another disadvantage of EPAs are that they did not allow for the appointment of replacement attorneys.  LPAs do, which provides greater flexibility if any of your attorneys become unable to act.

LPA for Health and Care decisions

Even if you have an EPA, you may still wish to consider making an LPA.  EPAs only allow your attorneys to make decisions in relation to your property and financial affairs but there are two types of LPA, one of which relates to health and care decisions.  An example of when a health decisions LPA could be valuable is authorising your attorneys to make decisions on your daily routine and care if you move into a care home.  Similarly, it would give your attorneys authority to make decisions on hospital treatment.  You don’t need to worry that your attorneys will take over and prevent you from making your own decisions as, unlike the finance LPAs and because decisions about your health and care are very personal, a health LPA can only be used if you no longer have sufficient capacity to make decisions yourself.

Importantly, a health LPA allows you to authorise your attorneys to make decisions about life sustaining treatment.  Whether the treatment is life sustaining is situation specific but includes any medical assistance that is necessary to keep you alive.  This is often a scenario that people do not wish to think about but an LPA can empower you in knowing that your wishes would be followed.

Advance Decision

There are various ways that you can communicate your wishes to your attorneys, including in the LPA (although care must be taken with wording used, to ensure it works), a separate letter of wishes or by Advance Decision. An Advance Decision is a separate legal document, that generally focuses on the types of treatment you do not want to receive. The interaction between a health LPA and an Advance Decision can be complicated, so it is important to seek advice and put the documents in place that are right for you.

If you want to check whether you have the right, validly executed and (in the case of LPAs) registered documents in place, or would like to make LPAs, please contact our Wealth Preservation team.


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