TBI: Do I need to make a Lasting Power of Attorney if I already have an Enduring Power of Attorney in place?
LASTING Powers of Attorney (LPA’s) were created under the Mental Capacity Act 2005 and came into force on October 1, 2007. Prior to this people made Enduring Powers of Attorney when wanting to appoint another to make decisions on their behalf in relation to their property and financial affairs if they no longer had capacity to do so.
A regular question which is now asked is whether an old Enduing Power of Attorney (EPA) is still effective. The simple answer is yes - if you have made a valid EPA this can still be used.
However, on closer inspection you may consider that, even though your EPA still technically works, it may not give you the same flexibility and benefits as a Lasting Power of Attorney.
For example, the first issue is the appointment of attorneys, the people who you appoint to manage your affairs if you are no longer capable to make decisions for yourself. The old EPA was extremely rigid, in that you could only either appoint one person to act or appoint several in which case they all would have to act together.
The new LPA has much larger flexibility. For instance, in a typical husband and wife scenario it would be fair to assume that if either spouse became incapable of managing their affairs, they would wish in the first instance for their spouse to be their sole attorney. If however your spouse was also in ill health - or deceased - then you may wish your children to take over this role. The new LPA allows this by enabling you to appoint replacement attorneys unlike EPA’s.
Secondly, many people when creating an old EPA may have also included various restrictions such as ‘it can be only used or loss of mental capacity’ or ‘can only be used if there is medical evidence to support loss of mental incapacity’. Although on the face of it this seems like a great safe guard from it being used prematurely it does however create other problems. For instance, you may still have mental capacity to manage your affairs but you still wish for it to be actioned now. This is prevalent in cases where a person has become physically unable to manage their affairs, such as being hospitalised for a long period, physical injuries, heart attacks, strokes or frailty of old age.
In these cases, if your EPA has a mental capacity restriction, it will not be able to be used.
If you create an LPA you can choose whether or not you wish for it to be used for a physical incapacity, mental incapacity or both – again there is much more flexibility.
One of the most significant changes brought about the implementation of LPAs rather than EPAs is that you can now make a separate LPA in relation to health and welfare decisions. EPAs do not cover these types of decisions at all; an EPA can only be used for decisions regarding property and financial affairs. Therefore, if there are decisions to be made regarding your health and welfare there is no one who has legal authority to do so. You can now make an LPA separate LPA for these types of decisions. This will allow whoever you appoint to make decisions reading healthcare, treatment and your general welfare, which cannot be done under an EPA.
To discuss this or any other matter with Helen Dexter at Tilly Bailey & Irvine’s Barnard Castle office on 01833 638326.