Is an Enduring Power of Attorney still valid?

I regularly meet clients who made Enduring Powers of Attorney (EPAs) before the law changed in 2007, when Lasting Powers of Attorney (LPAs) were introduced. These clients often ask “Is an enduring power of attorney still valid?” The answer to this is “Yes”, although there are a number of reasons which may lead you to consider revoking it and putting in place a lasting power of attorney instead, nonetheless.

Is an Enduring Power of Attorney still valid?
Is an Enduring Power of Attorney still valid?

LPAs come in two varieties – one covering ‘Property and Financial Affairs’ and the other ‘Health and Welfare’. One of the big differences between an EPA and an LPA is that the EPA only covers decisions about your property and finances. A perfectly valid approach is therefore to make an LPA for Health and Welfare to sit alongside your existing EPA.

EPAs cannot now be changed, so if you wish to make any changes to the attorneys whom you have appointed then the only solution would be to revoke the existing deed and make an LPA for Property and Financial Affairs instead, to replace it.

When should an EPA be registered?

From a practical perspective, an EPA operates slightly differently to a LPA for Property and Financial Affairs. LPAs need to be registered with the Office of the Public Guardian as soon as they are made, whereas an EPA may only be registered if the donor has lost mental capacity. The unfortunate effect of this is that at exactly the moment you may need to use the EPA most urgently, when the donor loses capacity, it will have to be sent off for registration, which typically takes around two months.

Why replace my EPA with an LPA?

LPAs are also much more flexible than EPAs. You have the option of appointing fallback attorneys (so that the LPA will still be valid if your original attorneys could no longer act), appointing your attorneys to act jointly for some decisions and individually for others, and providing detailed guidance to your attorneys on how you wish them to use their powers in the body of the deed. Your mental capacity when signing an LPA is also verified by a certificate provider, who is an independent person who has known you well for at least two years. Your certificate provider wil discuss the deed with you before you sign and satisfy themselves that you understand it and have not been put under any undue pressure to make it. This process is intended to make disputes over capacity less likely.

All in all, an Enduring Power of Attorney is still valid, and is likely to be perfectly satisfactory, as long as you remain happy with your choice of attorneys and the way in which they are appointed. However, for a number of reasons, you may prefer to revoke your Enduring Power of Attorney and replace it with either one or both types of Lasting Power of Attorney.

Make a Free Enquiry

Chiltern Wills is a friendly, professional Will writing business based in Beaconsfield, Buckinghamshire, and acting for clients all over England & Wales. If you would like to discuss making your powers of attorney, call us on 01494 708688 or email us at info@chilternwills.com for a free, no-obligation initial discussion.

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