EPA’s were the fore-runners of Lasting Powers of Attorney (LPA’s) introduced by the Mental Capacity Act 2005. EPA’s enabled you to choose a person (“Attorney”) to look after your financial affairs in the event that you lost mental capacity. It is no longer possible to make an EPA but the EPA's made before the introduction of EPA's remain valid.
The Attorney is the person responsible for registering the EPA with the Office of the Public Guardian. This is because the EPA is only registered when the Attorney believes that the Donor is becoming or has become mentally incapable of handling his or her own affairs.
Whilst valid EPA's do have some significant limitations compared to Lasting Powers of Attorney and there may also be other reasons why they are no longer suitable for you:
1. EPA’s are strictly limited to your financial affairs. An EPA provides no specific allowance for decisions relating to Health & Welfare.
This is important. Many of us are living longer and require help making decisions about our care and welfare too. An EPA simply does not give your Attorneys the legal power to make these Health & Welfare types of decisions of your behalf.
In contrast, there are two different types of Lasting Powers of Attorney: one LPA to manage property and finance and another LPA to specifically manage Health and Welfare. Each type covers different decisions and there are separate application forms for each. You can choose to make both types, or just one, albeit that I recommend making both as decisions concerning both aspects of your life are crucial.
You can have the same attorney for both, or you can have different attorneys, depending on your preferences.
2. EPA’s often appoint several people as Attorneys who are required to act together, this means that for a decision to be made on your behalf, all those named have to agree.
In contrast, an LPA enables you to appoint more than one person but you can specify whether they must act jointly or jointly & severally, enabling one Attorney to act alone at certain times if you wish. This gives you far greater flexibility.
3. EPA’s do not provide for replacement attorneys.
Some EPA’s appoint a sole Attorney without any appointment of a replacement. If that Attorney were unable to act – say they had died or were unwell themselves, the EPA could not operate.
An LPA allows you to appoint replacement attorneys so if your first choice of Attorney is unwilling or unable to act, for whatever reason, your chosen replacement Attorney is able to act on your behalf in their place.
4. EPA’s can be limited to specific conditions.
It may be that when you created your EPA, you established specific conditions which activate the EPA, perhaps loss of mental capacity, but it may be that there are other circumstances which prevent you from managing your affairs, such as physical injury or illness which would not be covered by your existing EPA, so it could not be used.
An LPA is much more flexible because you are able to use it for either mental or physical incapacity or both.
5. Your Choice of Attorney is no longer appropriate.
It may also be some years since you appointed your EPA representative to manage your affairs and that person is no longer the correct or capable person to represent you.
You cannot amend your EPA but you can make a LPA nominating a more appropriate choice of Attorney.
An EPA is usually only registered and used when the Attorney believes that the donor has lost their mental capacity to manage their affairs. This means there may be a delay in activating the EPA for use.
An LPA is capable of registration as soon as you wish and can be registered immediately after it is made (before you have lost your mental capacity), so that it is capable of being used, without delay, the moment it is required in future. Whilst you have your mental capacity, an LPA can only be used with your permission.
If you have an EPA some or all of these limitation may apply to you and it might therefore be advantageous to make new arrangements whilst you still have your mental capacity. The solution was easy. If someone with capacity has already made an EPA but it no longer suits their requirements, they can replace it with a Property and Affairs LPA. We would also strongly recommend that everyone has an LPA for Health & Welfare decisions too.
LPA’s must be put in place whilst you have mental capacity, so it is not something to delay!
If you or an elderly relative have an Enduring Power of Attorney, please consider its limitations and whether it is still fit for purpose. We are always happy to review existing EPA’s and offer advice, free of charge, about the benefits of Lasting Powers of Attorney so please don't hesitate to contact us for Peace of Mind.
Alternatively, if an EPA is fit for purpose but you are an Attorney who needs assistance to register it with the OPG, we are happy to help.