Is my old enduring power of attorney valid?
Is this still valid?
This is a frequent question that I’m asked by clients. It hasn’t been possible to make an Enduring Power of Attorney (EPA) since 1 October 2007 when they were replaced by Lasting Powers of Attorney (LPAs). So over 17 years on, there’s quite a lot of confusion out there.
The simple answer is YES, provided they were made correctly. And as they were a shorter and much simpler document than the LPA, they were frequently offered alongside wills for a discounted price and sometimes even for no extra charge. So there are still a fair number of EPAs around.
Do I need to register it?
EPAs work differently from their LPA counterparts. Provided the EPA wasn’t specified to only come into effect on a loss of capacity, your attorneys can use it straightaway without having to register it at the Office of the Public Guardian (OPG) first. Your attorneys would just need to make an appointment at your bank or building society, produce the EPA document (or a solicitor-certified copy) plus their ID documents as required by the organisation.
Unfortunately, some (typically more junior) staff may not be familiar with EPAs and may tell the attorneys that the EPA has to be registered at the OPG before it can be used. This is not the case! EPAs only have to be registered when the person who made the EPA starts to lose the mental capacity to manage their own financial affairs.
Details of the forms that need to be completed and the giving of the required notice to the incapacitated person plus relevant family members is set out on the GOV.UK website via the link below:
Register an enduring power of attorney - GOV.UK
If your attorneys find themselves a bit at sea with the registration process, a member of The Association of Lifetime Lawyers would be able to sort out the application for them and make sure it was all done correctly.
Should I make an LPA instead?
So, there is no need to make an LPA to deal with your financial affairs instead?
The answer is, IT DEPENDS! It isn’t possible to alter an EPA once signed. Nor was it an option with EPAs to nominate replacement attorneys if your original attorneys were no longer able to act (you do have this option with LPAs).
Do you have enough people appointed as your attorneys? Are they still the right people to act for you? I would recommend reviewing your EPA carefully, and also take legal advice to just check that it has been validly made and will work in the way you expect. For instance, if you’ve specified your attorneys must act ‘jointly’ rather than ‘jointly and severally’ they have to make all decisions together and all attorneys must sign every document on your behalf. Therefore, if one of them has died or is otherwise unable to act, the EPA is no longer useable.
Will it cover health decisions?
EPAs only cover financial matters not health and welfare ones. If their EPA still passes muster, it is quite common for clients to add a health and welfare LPA to their financial EPA to make sure they have attorneys who can assist with any situation they may face in the future. Please see below the link to further information about LPAs on this website.
Powers of Attorney | Lifetime Lawyers | Lifetime Lawyers
A member of The Association of Lifetime Lawyers can guide you through the process of making and registering a health and welfare LPA to make the process as straightforward as possible and with their expertise, make sure it covers everything you need in your individual circumstances.
If a review of your EPA reveals it is no longer meeting your requirements, they can also help you to make and register an LPA for financial decisions that does meet them. They can also ensure that your EPA is correctly revoked (cancelled) so there is no potential clash of power of attorney documents. An LPA does not automatically revoke an EPA. Please see the link below if you would like to find an advisor near you.
Find a Lawyer | Lifetime Lawyers
So, in summary: -
YES, your EPA should still be valid if made correctly BUT do check it has been and that it still meets your needs. ALSO CONSIDER adding a health and welfare LPA!