Putting a Power of Attorney in place is one of the most important steps you can take to protect your interests and support your loved ones in the future. It ensures that if you are ever unable to make decisions for yourself, the people you trust can legally act on your behalf.
Clients often ask about the difference between a Lasting Power of Attorney (LPA) and an Enduring Power of Attorney (EPA), particularly where an older document already exists. While both serve a similar purpose, there are important legal and practical differences between them. Understanding these differences can help you decide whether your current arrangements are sufficient or whether further planning is advisable.
What Is an Enduring Power of Attorney?
An Enduring Power of Attorney is the form of Power of Attorney that was used in England and Wales before 1 October 2007.
An EPA allows an individual (known as the donor) to appoint one or more attorneys to manage their property and financial affairs. This can include dealing with bank accounts, paying household bills, managing investments, or selling property if required.
Although it is no longer possible to create a new EPA, any EPA that was validly made before October 2007 remains legally effective today.
One notable feature of an EPA is that it could be used immediately after being signed, even while the donor still had full mental capacity. This meant an attorney could act with the donor’s consent from the outset. If the donor later began to lose mental capacity, the attorney was legally required to register the EPA with the Office of the Public Guardian before continuing to act.
However, EPAs have significant limitations. They only cover financial and property matters and do not give attorneys any authority to make decisions about health care, medical treatment, living arrangements, or personal welfare. As a result, many people with an EPA find that it no longer provides comprehensive protection.
What Is a Lasting Power of Attorney?
A Lasting Power of Attorney was introduced following reforms under the Mental Capacity Act 2005 and has replaced the EPA system entirely. LPAs are now the recognised legal framework for future decision-making.
There are two separate types of LPA, each covering different areas of decision-making.
Property and Financial Affairs LPA
This type of LPA allows your appointed attorneys to manage your financial matters. This can include operating bank accounts, paying bills, collecting income, dealing with investments, and selling or managing property.
You can choose whether this LPA can be used while you still have mental capacity, for example to assist with practical matters, or whether it should only be used if you lose capacity in the future.
Health and Welfare LPA
A Health and Welfare LPA allows your attorneys to make decisions about your personal care and wellbeing if you are no longer able to do so yourself. This can include decisions about medical treatment, care arrangements, daily routine, and where you live.
Unlike a financial LPA, a Health and Welfare LPA can only be used once you have lost mental capacity. While you are still able to make your own decisions, you remain fully in control.
Key Features of Lasting Powers of Attorney
All LPAs must be registered with the Office of the Public Guardian before they can be used. Registration is required even if the LPA is only intended for future use.
LPAs also include additional safeguards that were not present under the EPA system. A certificate provider must confirm that you understand the document and that you are not being pressured into making it. You can also include preferences or instructions to guide your attorneys and choose how they should make decisions together.
Enduring Power of Attorney vs Lasting Power of Attorney
| Feature | Enduring Power of Attorney (EPA) | Lasting Power of Attorney (LPA) |
|---|---|---|
| Legal framework | Enduring Power of Attorney Act 1985 | Mental Capacity Act 2005 |
| Can new documents be made? | No | Yes |
| Covers financial matters | Yes | Yes |
| Covers health and welfare decisions | No | Yes (separate LPA) |
| Registration required | Only once capacity is lost | Always required |
| Can be used while donor has capacity | Yes | Yes (financial LPA only, if chosen) |
| Safeguards and oversight | Limited | Enhanced protections |
Do You Need to Replace an Existing EPA?
If you already have an EPA, it may still be valid for managing your financial affairs. However, it does not cover health or welfare decisions and does not offer the same level of flexibility or protection as an LPA.
Many people choose to keep their existing EPA in place while also creating one or both types of LPA, particularly a Health and Welfare LPA, to ensure that all aspects of decision-making are covered.
Without a Power of Attorney, your family may need to apply to the Court of Protection if you lose capacity. This process can be time-consuming, expensive, and stressful at an already difficult time.
How Laker Legal Solicitors Can Help
Making a Power of Attorney is not just about completing a form. It is about ensuring your wishes are clearly expressed, your attorneys are properly appointed, and the document will work effectively when it is needed.
At Laker Legal Solicitors, we advise clients on all aspects of Powers of Attorney, including reviewing existing EPAs, preparing LPAs, and handling registration with the Office of the Public Guardian. Our approach is practical, clear, and tailored to your individual circumstances.
If you would like advice on putting a Power of Attorney in place, or reviewing documents you already have, we are here to help. Please simply contact us, for a free no obligation quote – we offer a range of fixed fees.
