As the Government has decided to delay the introduction of the new Lasting Power of Attorney (LPA) until October 2007 (the original ‘change-over date’ was set for April 2007), now seems an appropriate time to outline the main differences in practical terms between these and the existing Enduring Power of Attorney (EPA) which the LPA will replace.
Under an EPA, you appoint either single or joint attorneys who can make certain decisions on your behalf. Normally, this is to apply if you become physically or mentally unable to do things yourself but, should you wish it, an EPA can be used at any time after it is executed. An EPA only has to be registered with the Public Guardianship Office (PGO) if you no longer have the mental capacity to make decisions on your own behalf, whereas none of the attorney’s powers under a LPA will be operative until this has been registered with the PGO. There is a fee for doing this.
The main practical difference is that the attorney under an EPA cannot make decisions concerning your welfare, although they can make other sorts of decisions, for example regarding your finances. If you wish, a LPA can be set up to allow the attorney(s) to make decisions regarding your welfare as well as decisions regarding property and financial matters. This could, for example, allow an attorney the power to refuse medical treatment on your behalf in certain circumstances. However, this power will only come into force should you lose the capacity to make such a decision for yourself.
There are also different procedures for revoking and registering LPAs and EPAs, but both can only normally be revoked by the person who made the power, providing he or she has the mental capacity to do so, or if that person or the attorney is made bankrupt. However a LPA for personal welfare will not be revoked by bankruptcy. Before applying to register an EPA on someone’s behalf, a prescribed list of that person’s relatives must be notified whereas the notification requirements for LPAs will be more flexible.
If you do not appoint someone to handle your day-to-day affairs, in the event that you are unable to do so yourself, and later require this help, a receiver (either a relative or a professional person) has to be appointed by the PGO. This process can take time and cause unnecessary delays and problems for your family if they need to do things on your behalf but have no power to act.
EPAs are relatively simple to operate. Should you wish to have one in place, you will need to arrange to do this before the EPA is replaced by the LPA. EPAs already in existence at that time will continue to be valid.