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 1979||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 incapacitated the attorney is under a duty to register the EPA||Yes the LPA is not valid until it has been registered at the OPG.|
|Registration time||3-4 months||3-4 months|
|Replacement attorneys||It was not possible to appoint replacement attorneys under an EPA
Since 1st October 2007 EPA’s can no longer be made.
|It is possible to appoint replacement attorneys in the event your attorneys die, disclaim are incapable or bankrupt.|
|Restrictions||It was possible to limit powers under an EPA.||It is possible to give your attorneys instructions – limiting or restricting the power, imposing conditions on when or how they do things.|
|Preferences||It was not possible to write preferences into your EPA but many people wrote Letters of Wishes.||It is possible to 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 EPA or whilst setting it up||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||There is no Public Register of EPA’s unless your attorney makes an application for registration at the OPG when you have become or are becoming mentally incapable.||All valid LPA’s are registered at the OPG and kept on a central register.|
|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||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 or if want to add in preferences or instructions for your attorney’s
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.