Difference between a Lasting and Enduring Power of Attorney

You may be thinking about future life planning and what would happen to you in the event of losing mental capacity. In this article, we will be looking at the different options you can put in place to make your life that little bit easier for you, and your loved ones.

Topics to be answered in this article

What is Enduring Power of Attorney (EPA)?

An Enduring Power of Attorney is a document that appoints a chosen attorney or attorneys, to assist in managing their property and financial affairs. The document comes into effect if you lose mental capacity, or if you would like someone to act on your behalf. However, if you were to lose capacity, the document would then have to be registered at The Office of the Public Guardian which is a timely process and can cause lengthy delays.

What is a Lasting Power of Attorney (LPA)?

There are two types of Lasting Powers of Attorney. Firstly, there is the Lasting Power of Attorney for property and financial affairs which your attorneys can make decisions on your behalf with regards to property, investments, bank and building society accounts, pensions and bills.

The second document is a Lasting Power of Attorney for health and welfare. This document enables your attorneys to make decisions in relation to your medical care, your daily routine, where the donor resides and if you choose to do so, you can give your attorney the authority to accept or refuse life sustaining treatment.

After the documents have been signed and witnessed by all parties in a particular order, they are then sent to The Office of the Public Guardian to be registered at a charge of £82 per document. This process takes approximately 16 – 20 weeks to be completed.

Related article: Everything you need to know about Lasting Powers of Attorney

Is an EPA still valid?

If you have made and signed an Enduring Power of Attorney before 1st October 2007, it should still be a valid document. Since 1st October 2007, it is no longer possible to make an Enduring Power of Attorney as they were replaced by Lasting Powers of Attorney. 

The documents are governed by the Mental Capacity Act 2005 and you must have the necessary capacity to make the document at that time.

How does LPA work?

Lasting Powers of Attorney are flexible and can be drafted to suit your needs. The document can be registered immediately by you (the donor) which enables your attorneys to be able to use it whilst you have capacity as long as they have your consent to do so. This is the most common option that people choose because it is very practical. An attorney can also apply to have the document registered.

Another option you can choose is for the Lasting Power of Attorney to only be used when you do not have capacity. However, this is less useful as your attorneys may have to prove you do not have mental capacity each time they use the document.

A requirement to validly execute Lasting Powers of Attorney is to have a Certificate Provider to confirm that as far as they are aware and to the best of their knowledge, you have the necessary capacity to execute a Lasting Power of Attorney at that time. There are strict requirements of who can be a Certificate Provider. For example, it has to be someone who has known you personally for a minimum of two years, they have to be aged over 18 years or an individual with the relevant professional skills and expertise who can determine you have the capacity to make the document.

What happens if I lose mental capacity without an LPA?

If you lose mental capacity without having made a Lasting Power of Attorney, you will have to make an application to the Court of Protection to issue a Deputyship Order to become their appointed Deputy. The process of applying for a Deputyship Order can take a long time and is also very costly. For more information on Deputyship Orders, please see our factsheet.

Does the spouse get automatic LPA?

Some people assume that marriage, civil partnerships and ‘common law relationships’ automatically gives the right to make decisions on other people’s behalf. Unfortunately, this is not the case. Also, some people believe that a next of kin will be able to make decisions for you, however, as far as the law is concerned, a next of kin means nothing with the only exception of children under the age of 18.

Financial and wellbeing decisions can only legally be made with either an Enduring Power of Attorney, Lasting Power of Attorney or Deputyship Order.

How can Goughs help?

Here at Goughs, we have the expertise to ensure that all of your legal matters are met and that the correct documents are put in place to cover all life events. We understand that it is a difficult decision to make but with the right guidance, reassurance and planning, you can be set up to deal with any unexpected events in the future. Get in touch with us today if you have any questions.

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Author Bio

Olivia Clifford

I joined the Private Client Department at Goughs in June 2017 as a Legal Secretary and began my studies for Cilex in March 2021.  I am currently studying in my personal time whilst working full-time.   I started my Trainee journey in January 2023.

I am very understanding and empathetic towards our clients as I understand that the legal process can be quite daunting for them. I take great satisfaction from making our clients feel comfortable and guiding them through a challenging time.

In my personal life I enjoy spending time with friends and family, and also long dog walks in the countryside.

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