Confusion between an LPA and an Enduring Power of Attorney is still common, many years after EPAs were replaced. Families often find an old EPA in a filing cabinet and wonder whether it is still valid. This guide explains the key differences in the LPA vs Enduring Power of Attorney question, and how to decide whether to keep an EPA or make new LPAs.
Why EPAs were replaced by LPAs
Enduring Powers of Attorney were introduced in 1986 under the Enduring Powers of Attorney Act 1985. They let a person (the donor) appoint attorneys to manage their property and financial affairs, including after the donor lost mental capacity.
The Mental Capacity Act 2005 replaced EPAs with Lasting Powers of Attorney from 1 October 2007. LPAs added a health and welfare option and more checks when the document is made.
Existing EPAs were not cancelled. An EPA signed before 1 October 2007 can still be used if it was made correctly. However, nobody can make a new EPA, so LPAs are now the only option for new planning.
LPA vs Enduring Power of Attorney: the key differences
What they cover
An EPA covers property and financial affairs only. Attorneys can manage bank accounts, pay bills and deal with property. However, they cannot make decisions about health, care or medical treatment.
There are two types of LPA. A property and financial affairs LPA covers similar ground to an EPA. A health and welfare LPA covers decisions about care, medical treatment and where you live. Many people make both, and you can choose different attorneys for each.
When they can be used
An EPA can be used before it is registered while the donor still has capacity, unless the document says otherwise. Once the attorney believes the donor is losing or has lost capacity, they must register the EPA with the Office of the Public Guardian (OPG). Until it is registered, the attorney’s powers are very limited.
An LPA cannot be used at all until the OPG has registered it. Most people register their LPAs soon after signing, so they are ready when needed. A property and financial affairs LPA can then be used while you have capacity if you allow it. A health and welfare LPA only applies when you cannot make the decision yourself.
Registration
Registering an EPA involves notifying the donor and certain close relatives, who can object. Because this happens when capacity is already failing, it can come at a stressful time. The OPG currently takes around 8 to 10 weeks to register documents, so delays can leave bills unpaid.
LPAs are usually registered in advance. The OPG fee is £92 for each LPA, although reductions and exemptions may apply.
Safeguards
Every LPA needs a certificate provider. This is an independent person who confirms that the donor understands the LPA and is not being pressured into making it. Attorneys also sign a statement confirming that they understand their duties. Donors can add preferences and instructions to guide their attorneys, and can name replacement attorneys.
EPAs did not have a certificate provider. However, it would be wrong to say EPA attorneys have no duties. Once a donor lacks capacity, EPA attorneys must still follow the principles of the Mental Capacity Act 2005, act in the donor’s best interests, and should have regard to the Code of Practice. The OPG can also investigate concerns about any attorney.
Checking whether a power of attorney is registered
You can ask the OPG to search its registers to see whether someone has a registered EPA or LPA. An unregistered EPA will not show up, because the OPG only holds a record once a document is registered.
A registered LPA can also be shared online using the OPG’s “Use a lasting power of attorney” service. Many banks and other organisations accept this, but not all. GOV.UK explains how Lasting Powers of Attorney work.
Should you replace your EPA?
If you have an EPA and still have capacity, the LPA vs Enduring Power of Attorney decision comes down to a few questions:
- Do you want health and welfare cover? An EPA cannot provide it, so you would need a health and welfare LPA in any case.
- Are your attorneys still the right people? If not, a new LPA lets you choose again and name replacements.
- Is the EPA still unregistered? Your attorneys would face the notice and registration process at a difficult time.
- Do your banks accept it? Most organisations recognise valid EPAs, but some staff are less familiar with them.
Making an LPA does not automatically cancel an EPA. If you decide to replace it, you can revoke the EPA while you have capacity. Keeping both can cause confusion, so most people choose one or the other.
If you no longer have capacity, you cannot make an LPA. In that case, a valid EPA may be the only document that lets your family help without applying to the Court of Protection.
The practical steps
- Find any existing EPA and check whether it has been registered.
- Consider whether the attorneys named are still suitable and willing.
- Decide whether you also want a health and welfare LPA.
- If you replace the EPA, make your new LPAs and revoke the EPA in writing.
- Register your LPAs so they are ready when needed.
How A.D.E. Wills can help
A.D.E. Wills prepares Lasting Powers of Attorney for clients in Oxford, Aylesbury and the surrounding area, and online. If you are weighing up an LPA vs Enduring Power of Attorney, Edward can explain how it compares with an LPA and whether new LPAs may suit you. We prepare the forms carefully to reduce the risk of the OPG rejecting them, and we can deal with registration for you.
Our LPAs are charged at a fixed fee, shown on our LPAs Pricing page. The OPG fee is separate. Where specialist legal advice is needed, we can refer you to an appropriate professional.
To talk it through, call 01865 507174 or email info@adewills.co.uk. You can also read more about our Lasting Powers of Attorney service.
