If you are unsure of the difference between and EPA and an LPA the table below looks at the key differences.
|Legislation||Enduring Power of Attorney 1985||Mental Capacity Act 2005|
|Financial Property & Affairs||Yes||Yes|
|Health & Welfare||No||Yes|
|Valid||Yes – if signed before 1st October 2007||Yes if signed and registered at the Office of the Public Guardian (“OPG”)|
|Do I have to register at the OPG?||An unregistered EPA can be used if the donor has capacity. When the donor is becoming or has become mentally incapable the attorney is under a duty to register||Yes the LPA is not valid until it has been registered at the OPG.|
|Registration time||3-4 months||3-4 months|
|Restrictions||It is possible to insert restrictions or conditions into an EPA.||You can give instructions – limiting or restricting the power or imposing conditions on when or how they do things.|
|Preferences||It was not possible to write preference into your EOA but many people wrote letters of wishes||You can write your preferences or guidance into your LPA to make your wishes clear to your attorneys.|
|Safeguards||There were no safeguards imposed to manage an EOA or when setting up an EPA||To make an LPA you must have an independent certificate provider to certify:
(a) You have capacity to enter into an LPA
(b) Are not under duress
(c) No other reasons the Lasting Power of Attorney should be be entered into
|Public Register||The OPG keep a register of all registered EPA’s||The OPG keep a register of all registered LPA’s. The LPA must be registered before it can be used.|
|Search of the register||You can carry out a free search of the register using OPG 100||You can carry out a free search of the register using OPG 100|
|Can I make changes?||No, but you can make an LPA instead if you have capacity to do so||You can revoke the appointment of one or more attorneys by a Partial Deed of Revocation.
Any new appointment or other changes need to be made by a new LPA
|Can I revoke the document?||Yes – if you have capacity to do so.
You must enter into a Deed of Revocation and serve this on your attorneys and send it to the Office of the Public Guardian f it is registered.
|Yes – if you have capacity to do so.
You must enter into a Deed of Revocation and serve this on your attorneys and send it to the Office of the Public Guardian if it is registered.
Please note that if you have an EPA you don’t need to change or upgrade this to an LPA unless your circumstances or wishes have changed.
Acting for someone who has lost capacity, or perhaps challenging care or care home funding arrangements is complex, which is why you need an expert.
Talk to the experts – Wilson Browne Solicitors. All the help you need.