What might happen to an individual in the near or far future is something that none us like to think about. This article is going to outline the differences between the two types of Power of Attorney and why it is something we should all give some thought.
Enduring Power of Attorney (EPA)
Someone who is known as the “Donor” can appoint an attorney who will act in the donor’s best interests. As long as the EPA is legal, and the donor has given permission you can start using the EPA at any time after someone has lost their mental capacity. Matters that the attorney will be dealing with will include financial decisions such as property, investments, and any bills. Any EPA signed before October 1st 2007 will still be effective but after this date Donors have to make a Lasting Power of Attorney instead.
Lasting Power of Attorney (LPA)
Just like the EPA, the attorney has to act in the best interests of the Donor. However, unlike the EPA there are two different types of LPA which are a Property and Financial Affairs Attorney or a Health and Welfare Attorney. This highlights how limited EPAs are and how LPA’s offer a much more flexible approach.
A Financial Affairs Attorney can be used before or after someone loses their mental capacity and can involve anything from using the Donor’s money to buy their home essentials such as food too buying and selling property for the Donor.
A Health and Welfare Attorney can only be used after the Donor has lost mental capacity and it can include making decisions about the donors living arrangements and medical care. Of course, after the death of the donor, the Will of the donor will take priority over the LPA.
Other key differences between EPA & LPA:
- An Enduring Power of Attorney must be registered after the Donor starts to lose their mental capacity. This differs to a Lasting Power of Attorney for Financial Affairs because there is the option to act on behalf of the Donor while they still have their mental capacity. If there is another reason why the Donor cannot act for themselves for example bad physical health, the attorney can act under the financial LPA whereas under an EPA this would not be possible. It is important to underline that Health and Welfare Attorneys acting under the Health and Welfare LPA can only ever act in the event of the Donor losing mental capacity.
- Under the rules of EPA’s there is no such thing as replacement attorney in the circumstance that the attorney you appoint becomes ill. If a Donor wants multiple attorneys, they all have to work together which could become complicated. Regarding LPA’s, you can appoint replacement attorneys which mitigates the risk of an attorney becoming unable to act anymore.
If you require any further information regarding the Lasting Power of Attorney we are here to help. Please contact us on 01244 478 730 to book your free, no obligation consultation.
Written by: Jessie Smith
This article does not constitute legal advice and is for informational purposes only. Please contact us on 01244 478730 or at firstname.lastname@example.org to book an appointment.