Enduring Power of Attorney and Lasting Power of Attorney

Date Added: 10 September 2007

As of 1 October 2007 the law regarding an individual who wishes to grant someone a Power of Attorney to make decisions on their behalf is changing.

Currently an Enduring Power of Attorney (EPA) is used to grant someone the power to manage your affairs. It is used to give someone the power to deal with your money and property. Certain restrictions can be placed on these powers. If the Attorney has reason to believe that you are becoming or have become unable to manage your own affairs they must apply to the Court of Protection to register the Power of Attorney and manage your affairs for you. You and at least 3 of your relatives must be notified when the EPA is being registered.

EPA’s cannot be entered into after 1 October 2007.

EPA’s that are entered into prior to 1 October 2007 are still valid and can be registered after 1 October 2007.

After 1 October 2007 if you wish to grant someone the power to manage your affairs you must grant a Lasting Power of Attorney (LPA). This must also contain a certificate completed by an independent person to confirm that you, as the donor, understand the powers and importance created by the LPA and that you are not under any pressure to make it. The certificate must be completed by either a person who has known the individual creating the LPA for 2 years or by a person within a list of descriptions stipulated in the document.

Unlike the EPA, the LPA can contain the names of anyone that you want to be notified of the application to register it.

Under an LPA your Attorney can make decisions regarding your personal welfare in circumstances where you have lost the capacity to make such decisions. This cannot be done with an EPA. Personal welfare can include provisions for giving or refusing consent to medical treatment.

Under an EPA an attorney can act immediately. However, under an LPA an attorney cannot act unless it is registered with the Court of Protection. This can be done either before you lose mental capacity or once your Attorney believes that this has happened. Either the Attorney or you (the donor) can apply to register the LPA.

The attorney’s role under the LPA has also been made more complex. The Attorney must adhere to the code of practice issued under the Mental Capacity Act 2005.

A recent article in the Law Society Gazette (17 May 2007) which discusses the likely cost of the LPA points out. ‘The documents as drafted, one for personal and welfare and one for property and financial affairs, are longer and more complex than the EPA that everyone is familiar with… There is also now a registration fee to pay to the Public Guardian before the document can be used’

The legal work undertaken for the drafting of this document is going to be more extensive than that of the EPA hence increasing the legal costs.

The Public Guardian office are currently advising that the fee for the registration of an LPA is going to be £150.00 (£25.00 more than it currently costs to register an EPA) but this will not be confirmed until around the middle of September and this figure may be revised before it is confirmed.

If you would like to speak to the probate team at Hallett & Co please visit the probate section of this web-site for the relevant contact details: /for-individuals/wills-probate-and-tax-planning/

Or phone us on 01233 625711

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