Enduring Powers of Attorney
Did you know that there are different kinds of Power of Attorney? The type you have affects what your attorneys can do, the process you or your attorneys need to go through the use the document and the safeguards in place to protect you, the donor.
Enduring Powers of Attorney used to be the most common type of Power of Attorney. However, they were replaced in 2007 by Lasting Powers of Attorney.
If you have an Enduring Power of Attorney, it can probably still be used when needed. But it is worth checking whether it is valid and whether you have any better options to safeguard your future, such as making a Lasting Power of Attorney.
Here we cover:
- What an Enduring Power of Attorney is.
- Whether you can still make an Enduring Power of Attorney.
- Whether you can still use an Enduring Power of Attorney.
- What the difference between and Enduring Power of Attorney and Lasting Power of Attorney is.
- Whether you should replace your Enduring Power of Attorney with a Lasting Power of Attorney.
- How to cancel an Enduring Power of Attorney.
For more information about how we can help you, visit our Powers of Attorney Solicitors page.
What is an Enduring Power of Attorney?
An Enduring Power of Attorney (EPA) is a legal document you used to be able to make to appoint one or more people (your ‘attorneys’) to make decisions about your property and money if you lost your mental capacity at some point in the future. For example, your attorneys could be authorised to do things like:
- Manage your bank accounts.
- Collect your pension or benefits on your behalf.
- Sell your property.
Anything the attorneys do would have to be in your best interests and fall within the scope of their powers set out in the EPA document.
EPAs were replaced by a similar type of legal document called a Lasting Power of Attorney in 2007.
Can you make a new Enduring Power of Attorney?
You can no longer make an Enduring Power of Attorney. If you would like to appoint someone you trust to manage your financial affairs in case you become unable to make your own decisions, you can make a Lasting Power of Attorney – a similar document that gives you more protections and options.
Can you still use an Enduring Power of Attorney?
EPAs made before 1 October 2007, whether they are registered or unregistered, can still be used. If you have an EPA, it is important to check whether it was made correctly, otherwise it cannot be used. A valid EPA should have been:
- Made when the donor (the person who made the EPA) was at least 18 years old and had the mental capacity to make their own decisions.
- Signed by the donor.
- Signed by a witness who was not one of the attorneys.
- Signed by all the attorneys.
The donor and attorneys also should not have been bankrupt when the EPA was made (nor should they have been made bankrupt since).
If you are concerned about whether an Enduring Power of Attorney is valid, our team would be happy to help.
What is the difference between an Enduring Power of Attorney and a Lasting Power of Attorney?
The main differences are:
- EPAs can only be used to make financial decisions. In contrast, there are two types of Lasting Power of Attorney (LPA) you can make:
- A Property & Financial Affairs LPA – like an EPA, can allow someone to do things like access your bank accounts.
- A Health & Welfare LPA – allows someone to make decisions about things like your care, medical treatment, where you live and your day-to-day routine.
- An EPA can be used whether or not it is registered with the Office of the Public Guardian. EPAs only have to be registered once the donor loses their mental capacity. LPAs on the other hand cannot be used until they are registered.
Should you replace your Enduring Power of Attorney with a Lasting Power of Attorney?
EPAs were replaced with LPAs in part because of concerns that it was easier to exploit and abuse people using an EPA.
To make an LPA, someone must certify that the donor has mental capacity. It must also be registered with the Office of the Public Guardian before it can be used. These additional protections make it harder to coerce someone into making a Power of Attorney or to misuse the donor’s money and property.
If you have a valid EPA in place you do not have to change it into an LPA. However, you may want to make an LPA (either to replace or in addition to your EPA) if:
- You want to appoint attorneys to make decisions about your health & welfare.
- There are concerns that people may try to influence or exploit the donor and would like the additional protections of an LPA.
Visit our Lasting Powers of Attorney page to find out how we can help.
How do you cancel an Enduring Power of Attorney?
If you have mental capacity, you can usually cancel your EPA very easily. For example, you may want to cancel it to make a new LPA to replace it.
You need to make a ‘Deed of Revocation’ that says you want to cancel it which must be witnessed. This Deed can be prepared by your solicitor to make sure it is in the correct form. Your solicitor can also inform your attorneys and any relevant financial institutions.
If the EPA is registered, the process is a bit harder as the person who made it will usually lack mental capacity to revoke it themselves. You will need to apply to the Court of Protection and pay a court fee. Our Power of Attorney solicitors can also assist with this.
Need expert legal advice about Powers of Attorney?
For expert advice about all Power of Attorney related matters and questions, including:
- Checking the validity of your Enduring Power of Attorney.
- Registering and using Enduring Powers of Attorney.
- Advice about creating a Lasting Power of Attorney.
Get in touch with our friendly, practical Power of Attorney solicitors in London.
We can offer you a free 10-minute initial consultation to talk about your Power of Attorney needs and how we can help.