Lasting Powers of Attorney (LPAs) were introduced in England and Wales under the Mental Capacity Act 2005 which came into effect on 1st October 2007. LPAs replaced the earlier Enduring Powers of Attorney (EPA) so is it necessary to set up LPAs if you already have an EPA in place? In short, not necessarily as your EPA will still be valid. However, if your circumstances have changed since this document was set up, it may be worth considering LPAs.
One reason why you may wish to replace your existing EPA is if it no longer accurately reflects your wishes in regard to the attorneys you would like to appoint. If you would like to change your attorneys you will need to revoke your EPA and a new LPA will need to be drawn up. Similarly, if the attorneys that you have appointed under your EPA are no longer able to act, it does not provide any scope for appointing a replacement attorney so an LPA may need to be prepared provided the donor still has capacity. If the donor does not have a capacity, a Deputyship Application will be required (for more information click here).
LPAs were brought in to provide a greater level of protection and flexibility as it allows your attorneys to deal with health and welfare matters, as well as your finances and property. As a result of this, people with an existing EPA may choose to keep this in place but also prepare a health and welfare LPA. Also, unlike EPAs, LPAs can be registered immediately, rather than waiting for the donor to lose mental capacity and it is possible to appoint replacement attorneys. However, please note that it is not necessary for an EPA to be registered for an attorney to act.
Lastly, your EPA may contain a restriction which means that it can only be used once you have lost mental capacity. This would prevent your attorneys from acting in cases where you are physically incapacitated but have mental capacity. In this case it may be beneficial to prepare a Property and Financial Affairs LPA to allow your attorneys to deal with your assets when you still have mental capacity.
If you have any questions regarding Enduring or Lasting Powers of Attorney, then please contact Ashley Minott on 01494 893518.