From here to eternity
Above: .
Roughly two years ago in Kent Life, we extolled the virtues of Enduring Powers of Attorney – legal documents under which you appoint one or more persons known as your attorney(s) to manage your property and financial affairs in the event that you cannot do so yourself or need some assistance in doing so.
With more and more of us living longer, Enduring Powers of Attorney are proving increasingly indispensable, helping individuals and their families cope with cases of both physical incapacity and mental incapacity.
Enduring Powers of Attorney (EPAs) have been with us for a good 20-odd years, but, as part of a general shake-up of mental health legislation, as of 1 October this year, EPAs will cease to exist, with something known as Lasting Powers of Attorney (LPAs) taking their place. We therefore thought it was time to take another look at the issue.
I’ve already entered into an EPA. Do I now need to make an LPA?
No. EPAs entered into before 1 October 2007 will remain valid and can continue to be used as normal; it’s just that new EPAs can’t be made from this date onwards.
Are LPAs essentially the same as EPAs?
Yes and no. There are two types of LPA – a property and affairs LPA and a personal welfare one. The property and affairs LPA is in some ways akin to the EPA, allowing you to appoint up to five attorneys (including, if you wish, a trust corporation) to deal with your property and financial affairs on your behalf, for example, managing investments, paying bills, dealing with pension providers, even selling your home.
The personal welfare LPA is a newer concept and allows you to appoint attorneys to make decisions regarding the medical treatment you are to receive (including, if you wish, consenting to or refusing life-sustaining treatment on your behalf) and general welfare issues, such as where you are to live, what food you are to eat, and what clothes you are to wear. However, your attorneys can make these decisions for you only if you are incapable of making them yourself.
One major practical difference between LPAs and EPAs is that LPAs cannot be used at all until they have been registered with the Office of the Public Guardian (OPG). This is the case regardless of whether or not the person who has entered into the power (‘the donor’) has lost capacity.
Although designed to reduce cases of abuse, this does mean a loss of flexibility. The 18-year-old about to go off backpacking for a year who wants to enter into an LPA to allow Mum and Dad to operate her bank account for her would need to ensure that the power is registered before it can be used – resulting in at least six weeks’ delay to allow for the registration process to run its course, plus the additional expense of the registration fee (expected to be set initially at £150, although this may be reduced in cases of hardship). In the future, therefore, it may be that an ordinary power of attorney will be more appropriate in this situation.
Is it worth me hurrying to do an EPA before the October deadline, then?
The general consensus seems to be a resounding ‘yes’. It’s likely to be a lot cheaper, and the power will have to be registered only if you become mentally incapable of managing your property and finances.
I would like to appoint someone to look after my financial affairs, if necessary, but don’t want someone taking welfare decisions for me. Do I have to do both types of LPA?
No. You can enter into just the property and financial LPA or, alternatively, just the personal welfare LPA.
You can also appoint different attorneys under the two documents. Remember, however, that circumstances may arise where both sets of attorneys will need to co-operate – for example, if you ever need to move into a residential home, this will involve decisions being taken that will affect both your personal welfare and your property and finances.
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