Power of Attorney: Differences Between Lasting & Enduring

It’s common to go through life without thinking about the possibilities of what could happen in the future. Thus, power of attorney isn’t always everyone’s priority. Still, when it is discussed, one of the commonly asked questions is the difference between Enduring and Lasting Power of Attorney, which are both very different things.

The Mental Capacity Act 2005 (which came into effect in October of 2007) altered the laws around powers of attorney. With this law change, creating an Enduring Power of Attorney is no longer possible. The new format is a Lasting Power of Attorney. However, existing Enduring Powers remain valid and active.

This guide will explain the key differences and similarities. Some legal terms are used in the guide. The person signing the Power of Attorney is a ‘donor’, and an attorney is entrusted to act on behalf of the donor. An attorney may often be a lawyer but does not have to be a lawyer. Anyone over 18 can be appointed as an attorney.

What is Enduring Power of Attorney (EPA)?

As previously mentioned, EPAs are a form of Power of Attorney created prior to October 2007, of which there are still thousands active and valid.

They allow an appointed attorney to act on behalf of the donor in regards to matters of finance and property, as well as making purchases, signing documents, and making usual gifts. The attorney does not have the power to make substantial or unusual gifts or decide about matters of welfare and personal care.

EPAs are enduring because they can continue in force despite the donor losing mental capacity, unlike General Powers of Attorney, which do not.

What is Lasting Power of Attorney (LPA)?

LPAs are a form of Power of Attorney that allows an entrusted attorney to act on behalf of the donor in personal, health, financial, and business affairs. LPAs are activated as soon as the donor loses mental capacity; if they regain mental capacity, the donor will regain complete control. 

There are two forms of LPA that exist to partition the scope of their power, one for property and financial affairs (LPA (PFA)) and one for health and welfare (LPA (H&W)). LPAs are split into these two categories to ensure they can meet the wants and needs of the donors should they lose mental capacity.

Key Differences Between LPA and EPA

• LPA holders no longer have to apply to the court when the donor isn’t mentally capable. Instead, they must be registered with the OPG (Office of the Public Guardian).
• Activating an LPA requires a supporting witness to confirm that the donor is not currently mentally capable.
• An LPA is usually nominated to one person who can appoint others to make different decisions on behalf of the donor, whereas an EPA could designate multiple attorneys.
• Under a Health & Welfare LPA, the attorney can make life-changing decisions on behalf of someone. In contrast, under an EPA, the attorney cannot decide on matters such as where the donor should live or make decisions around their health and wellbeing.
• An LPA becomes valid when registered with the OPG and only when the donor is not mentally capable, whereas an EPA is valid upon signing.

Similarities Between EPA and LPA

• Both allow the appointed attorney to handle matters of finance and property on behalf of the donor when they lack the mental capacity to do so themselves.
• Holders of either may seek advice from the Office of the Public Guardian
• The OPG will launch an investigation if there is suspicion of attorneys not acting in the donor’s interest whilst they are vulnerable.
• Arrangements should not be created without advice or discussions with a legal professional.

Can I Replace an EPA with an LPA?

Provided you still have mental capacity, you may replace EPAs with LPAs. You can also create an additional LPA to handle matters of health and welfare should you become mentally incapable.

Power of Attorney Services in Bracknell, Berkshire

If you have any queries or concerns about any ongoing power of attorney matters and assistance on other affairs such as probate valuations, will writing, and estate administration, please get in contact with Thames Valley Will Services.