Frequently Asked Questions
What happens if I have an old Enduring Power of Attorney? (EPA)
If your Enduring Power of Attorney was validly signed and witnessed before 1st October 2007 it will still be valid and can still be used. (NB it may contain a clause stating that it cannot be used until it has been registered with the Court of Protection; further details below).
It may, however, be in your best interests to replace it with an LPA. When deciding if this could benefit you, there are several differences between EPAs and LPAs that you should consider.
Firstly, an Enduring Power of Attorney only covers your Property and Financial Affairs, whereas two separate LPAs can be created – one for your Property and Finances, and another for your Health, Medical Care and Welfare. This makes them more flexible in how they can be used and more comprehensive in the areas they cover.
When your EPA was made, it was most likely on the basis that it could not be used unless registered at the Court of Protection. This means that it cannot be used until registered, but it cannot be registered until it needs to be used! An obvious ‘chicken and egg’ situation. The problems that this caused were overcome by an LPA which can be registered as soon as it is signed.
A Lasting Power of Attorney allows you to have replacement attorneys, whereas under an Enduring Power of Attorney, if your attorney becomes unable to act on your behalf, the EPA is rendered useless.
A Lasting Power of Attorney also allows the flexibility to choose to have decisions made jointly and severally, for example in the circumstance that not all your attorneys can be present in a particular situation. This allows for the most flexible way of working in a variety of potential eventualities.
It is also a legal requirement that your attorney(s) register an Enduring Power of Attorney as soon as you, the donor, either show signs of losing mental capacity or actually lose mental capacity. This takes several months to complete and can lead to people other than your appointed attorneys making decisions on your behalf until the registration has concluded. In addition, there is a legal requirement to inform certain members of your family of the EPA’s registration, and if you have estranged relatives they would potentially have the ability to block this process.
With a Lasting Power of Attorney, however, we always recommend that it be registered immediately so that it is ready for use and application for your benefit from the outset, protecting you should your physical or mental capacity become impaired even in a premature or unexpected fashion.
A Lasting Power of Attorney also puts extra safeguards in place to protect your interests and requires a certificate provider to confirm that you, as the donor, aren’t being pressured to implement the Lasting Power of Attorney or to make certain decisions.
Who Should I Trust?
In a recent report conducted by Co-op Legal Services, it was found that 79% of respondents over the age of 45 had not made a Lasting Power of Attorney (LPA) because they do not completely trust their younger relatives to make financial decisions on their behalf when and if they were to lose capacity, with 35% claiming they have no intention of creating a Lasting Power of Attorney at all!
The report also found that 74% of those aged between 65 and 74 have so far failed to make a Lasting Power of Attorney, and, most worryingly, 67% of those over 75 have not made a Lasting Power of Attorney, mistakenly believing their loved ones will automatically be able to make their health and financial decisions if and when they lose capacity.
Increasingly, it seems that the older generation is unwilling to trust their younger relatives with their financial decisions as they age. There is no right or wrong answer to this question, except to say that we will all need someone to help look after us, and our affairs, when we are at our most vulnerable.
The possibilities are:
a) do nothing, which leaves the Local Authorities to decide what is best or
b) appoint a Professional Attorney
We would generally recommend against Option A.
At The Will & Trust Company, we believe that appointing your most trusted nearest and dearest, family or friend, to be your Living Power of Attorney, really is the best course of action in the vast majority of cases. We find that concerns and mistrust can be mitigated by including everyone in the conversation from the very outset, to ensure clarity about your wishes and more importantly your LPA’s formal accountability for implementing those wishes when required.
Can I amend or change my Lasting Power of Attorney?
Lasting Power of Attorney appoints people you trust to make decisions for you when you might not be able to, but what happens when things change, as they may well do?
You can have reserve Attorneys ready to step in if your first choice attorneys are no longer able to act for you; but what if you want different people to act as your Attorneys after you have made the initial appointment?
You can partially revoke an LPA, that is to say you may ‘fire’ an attorney you no longer wish to act on your behalf. You must do this whilst you still have mental capacity. Aside from that, there is no way to amend a Lasting Power of Attorney insofar as you cannot add another Attorney. The process must be started again from scratch, and so the first step is to revoke your current LPA’s, and then create new Lasting Powers of Attorney.
This process is relatively straightforward and uses standard wording and a document called a Deed of Revocation. All you need to do is tell us about your old LPAs and we will arrange for you to sign the Deed. Simple!
If your nominated attorneys change their name or address, you must inform the Office of the Public Guardian (OPG) as soon as possible. This is also the case in the unfortunate event of the death of one of your attorneys. Notification of changes must be sent either by post or by email. Look for your reference number, which will begin with PG, on any past correspondence from the Office of the Public Guardian, as this will help them to identify you.
If you need to update a name or address you must provide supporting documents, such as an original marriage certificate, showing the new details. If one of the attorneys has died, however, you must send the Office of the Public Guardian a copy of the death certificate, the original Lasting Power of Attorney, and all certified copies of the Lasting Power of Attorney as well as an up-to-date return address.
Do not forget that only the Office of the Public Guardian can amend a Lasting Power of Attorney, otherwise it can invalidate the document!
Although The Will and Trust Company cannot update the Lasting Power of Attorney document, if you need further advice on updating your LPA or if you don’t currently have one and would like some peace of mind over your health and financial affairs, then please get in touch, and we will be happy to help.
How long does it take to register a Lasting Power of Attorney?
In our experience, waiting times from mailing to registration confirmation for a Lasting Power of Attorney are typically 10 – 12 weeks. This can vary seasonally and based on the level of demand the Office of the Public Guardian is experiencing.
During a crisis like Covid-19, for example, processing time rose to more than 20 weeks.
In the meantime, there is a risk that a stranger appointed by the authorities could be put in charge of your property and financial affairs, or to make decisions about your health and care if you lack the mental capacity to do this yourself, hence why at The Will & Trust Company we urge clients to register LPAs as soon as they are signed.
What is General Power of Attorney?
A General Power of Attorney form legally allows a relative or friend to deal with your financial affairs for specific periods or events. The maximum period this document remains valid is 12 months, but another General Power of Attorney can succeed it, provided you have mental capacity.
There may be specific events or periods of time when we may need to give control of our financial and legal matters to others, e.g.if we are leaving the country for an extended period of time.
During the COVID-19 crisis, for example, many people found themselves self-isolating and relying on others to do many things we would normally do for ourselves; sometimes we need to give others the power to act on our behalf in certain matters.
A General (or ‘Ordinary’) Power of Attorney form is a legal document that allows this to be done. It could, for example, allow someone to sign cheques and letters for you if you were unable to leave the house.
In England & Wales, it applies only to your property and affairs. You cannot use it to authorise someone to make decisions about your personal health and welfare.
This document does not allow you to grant authority to someone to perform in your role as a Trustee or Executor (i.e. administrator) of someone’s else’s Estate.
The General Power of Attorney form is automatically cancelled if you become incapable of making decisions. This is because, if you lose mental capacity, the General Power of Attorney falls away and your Lasting Power of Attorney seamlessly takes over.
If you want to make a Power of Attorney that remains valid if you become mentally incapable, then you should make a Lasting Power of Attorney.
There is no requirement for the General Power of Attorney form to be registered. For the form to be valid, the ‘Donor’ (the person granting the Power) and the ‘Attorney’ (the person being granted the authority) must be over 18, the donor must have the capacity to grant the General Power of Attorney, and they must not be an undischarged or interim bankrupt. This document also allows you to appoint more than one Attorney jointly and severally if you so wish.
When is my Lasting Power of Attorney valid?
As soon as your Lasting Power of Attorney is signed by you and your chosen Attorneys and witnessed as required, it will be valid.
However, in order for your Attorneys to use the LPA, it must be registered with the Office of the Public Guardian. This is the government body that oversees and governs Powers of Attorney in England and Wales.
There is a fee (£82 at the time of writing) to register each Lasting Power of Attorney. At The Will and Trust Company, we believe it is particularly important that you register your LPAs as soon as possible after signing and witnessing.
If your LPA remains unregistered and then something happens to your physical or mental capacity that requires your attorneys to make decisions about your property and financial affairs, or your health needs, they will then have to wait until your Power of Attorney registrations are completed, which at the time of writing can take several months. In addition to the time delay, only once you go to register the LPA will you know if it has been correctly drafted, signed and witnessed. If the Office of the Public Guardian finds an error in your LPA they will usually refuse to register it, leaving you in the same situation as if you had never signed an LPA in the first place.