What is an Enduring Power of Attorney (EPA)?

Imagine suddenly losing the ability to manage your finances or make important decisions about your future. Who will be able to act on your behalf, protect your interests and make the right decisions for you? In UK law, the Enduring Power of Attorney was the legal tool that allowed such planning, though it has since been replaced by more comprehensive arrangements. To understand your current options and ensure proper legal protection, it is essential to call on the services of a specialist solicitor in wills, trusts, and estate planning.

Find out what an Enduring Power of Attorney is and how it differs from a Lasting Power of Attorney.

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What is an Enduring Power of Attorney?

The Enduring Power of Attorney (EPA) was a legal instrument in UK law that allowed a person (the donor) to appoint another person (the attorney) to manage theur financial and property affairs, particularly in the event of future loss of mental capacity. This power of attorney was described as enduring because it remained valid even when the princidonorpal became incapable of making their own decisions.

Unlike ordinary power of attorney, which which automatically ends when the donor loses mental capacity, the Enduring Power of Attorney ensureds continuity in financial management, making it an essential tool for anticipating incapacity situations.

Key limitations of EPA

Does enduring power of attorney cover health? No, the EPA only covered financial and property matters. It provided no authority over healthcare decisions, personal welfare, or life-sustaining treatment choices.

Current status

Is an enduring power of attorney still valid? Yes, EPAs created before October 1, 2007, remain legally valid and enforceable. However, no new EPAs can be created since this date, having been replaced by Lasting Power of Attorney.

What are the differences between lasting and enduring power of attorney?

Since the Mental Capacity Act 2005 came into force, the Lasting Power of Attorney (LPA) replaced the Enduring Power of Attorney (EPA) in the UK. Recognising the difference between lasting and enduring power of attorney is crucial for current planning:

Scope of authority

• EPA coverage: Only financial and property decisions including banking, bill payments, and property transactions.
• LPA coverage: Two types available, Property and Financial Affairs LPA (similar to EPA) plus Health and Welfare LPA covering medical decisions, care arrangements, and personal welfare choices.

Registration requirements

• EPA registration: Does an enduring power of attorney need to be registered? Only when the donor loses mental capacity, which can create delays when urgent decisions are needed.
• LPA registration: Must be registered with the Office of the Public Guardian before use, ensuring immediate availability when needed.

Legal safeguards

• EPA safeguards: Basic requirements with limited oversight during creation.
• LPA safeguards: Strict checks including certificate provider verification of mental capacity, witness requirements, and comprehensive oversight mechanisms.

Difference with Lasting Power of Attorney

The fundamental difference with lasting power of attorney lies in comprehensiveness and timing. LPAs provide broader authority, stronger safeguards, and immediate availability once registered, while EPAs offer limited scope and require registration only upon incapacity.

Advantages and disadvantages of the Enduring Power of Attorney

Although EPA cannot be newly created, understanding their characteristics helps those who still possess valid EPAs from before 2007:

The main advantages of an EPA include:

• Simplicity: The original EPA forms were straightforward with minimal certification requirements compared to modern LPA procedures.
• Cost-effective creation: No mandatory initial registration fee when originally created, unlike LPAs which require upfront registration costs.
• Continued legal validity: Is an enduring power of attorney still valid? Yes, properly executed EPAs from before 2007 remain fully enforceable under current law.
• Immediate activation: Once mental capacity is lost, attorneys can act quickly without waiting for judicial authorization.

What are the disadvantages of Enduring Power of Attorney?

• Limited scope: Does enduring power of attorney cover health? No – EPAs cannot address healthcare decisions, care arrangements, or personal welfare matters that are increasingly important in aging populations.
• Delayed registration: Registering enduring power of attorney only occurs after capacity loss, potentially causing critical delays when immediate action is needed for financial matters.
• Outdated legal framework: Some older EPA documents may not meet current legal standards or address modern financial complexities.
• Weaker legal protection: Less rigorous oversight compared to LPAs increases vulnerability to potential abuse or challenges.
• No amendment capability: Once signed, EPAs cannot be updated or modified, unlike LPAs which can be revoked and replaced while the donor has capacity.

Registration and formalities for an Enduring Power of Attorney

Does an enduring power of attorney need to be registered? Yes, but only when the donor begins to lose mental capacity. Until this point, EPAs can be used without registration.

Registering enduring power of attorney becomes mandatory when:

• The donor loses or begins to lose mental faculties
• The attorney wishes to exercise EPA powers
• Financial institutions require proof of registered authority

Steps for registering an enduring power of attorney

• Notification requirements: The attorney must inform all parties mentioned in the original EPA document that registration will proceed.
• Document submission: Submit the original signed EPA form with required supporting documents to the Office of the Public Guardian.
• Waiting period: A mandatory 35-day waiting period allows interested parties to lodge objections if necessary.
• Official registration: Upon successful completion, the OPG registers the EPA and issues confirmation of authority.

Costs and ongoing requirements

• EPA creation cost: Historical EPA creation involved minimal costs as no registration fee was required initially.
• Registration fee: Current registering enduring power of attorney costs £82 (same as LPA registration), with fee reductions available for low-income applicants.
• Professional assistance: Solicitor fees for EPA registration assistance typically range from £300–£800 depending on complexity.

Ongoing obligations

Once registered, EPA attorneys must maintain records of decisions and may face Office of the Public Guardian supervision similar to LPA arrangements.

FAQs

1. Can I revoke an Enduring Power of Attorney?
   Yes, while you have mental capacity, you can revoke an EPA by formal notification to attorneys and the OPG. After capacity loss, revocation becomes impossible.

2. Can multiple attorneys be appointed under an EPA?
   Yes, EPAs can appoint joint attorneys who must act together, or joint and several attorneys who can act independently, as specified in the document.

3. Are EPAs recognised outside the UK?
   EPAs are UK-specific legal instruments. Recognition abroad depends on local legislation and may require additional legal arrangements.

4. Do I need a Lasting Power of Attorney if I have an Enduring Power of Attorney?
   This depends on your specific circumstances. While valid EPAs provide financial authority, they lack healthcare decision-making powers. Many people with EPAs choose to create additional Health and Welfare LPAs to ensure comprehensive protection.

While existing EPAs remain valid, they provide only partial protection in today’s complex healthcare and financial landscape. Understanding your current legal position and exploring comprehensive protection options ensures your interests are fully safeguarded.

Don’t leave your future to outdated arrangements!

Qredible’s network of specialist solicitors in wills, trusts, and estate planning can review your existing EPA arrangements, advise on whether additional LPAs are needed, and ensure your legal protection meets modern requirements.

KEY TAKEAWAYS

• Enduring Power of Attorney remains valid if created before October 2007 but cannot be newly created
• EPAs only cover financial matters, not healthcare decisions, unlike comprehensive LPAs
• Registration is required only when mental capacity is lost, potentially causing delays
• Many EPA holders create additional Health and Welfare LPAs for comprehensive protection
• Professional legal review ensures existing EPAs remain effective and identifies coverage gaps