Thinking of setting up a Power of Attorney but feeling confused by the different terms like Enduring Power of Attorney and Lasting Power of Attorney (LPA)? With options like Enduring and Lasting Power of Attorney (LPA), it can be hard to know which one is right for you.
Both of these documents allow you to specifically appoint someone to manage your business or personal affairs if you’re unable to, but they have important differences that could impact your financial and healthcare decisions.
So, in this article, we are going to talk about the difference between lasting and enduring power of attorney in detail.
What is a Power of Attorney (POA)?
Before moving forward with comparing these types of attorneys, let us discuss the basics of POA.
A Power of Attorney (POA) allows you to transfer your decision-making authority on your behalf. It includes decisions about your finances, property, or healthcare. As per your UK law, there are three types of attorneys, each with a different purpose. Let’s talk about these:
Types of Power of Attorney | Description |
Ordinary Power of Attorney | A temporary legal document that gives a chosen person the authority to act on your behalf for specific tasks or a limited time. |
Enduring Power of Attorney (EPA) | An enduring POA legal document is used to give someone legal power to manage your financial and property affairs if you lose mental capacity. |
Lasting Power of Attorney (LPA) | LPA allows another person to take important decisions on your behalf regarding your finances, property, and health/welfare, even before losing mental capacity. |
Since all of these attorneys need more transparency, the government of the UK allows citizens to use online platforms to register for POA.
What is a Lasting Power of Attorney (LPA)?
A Lasting Power of Attorney (LPA) allows a person (the donor) to appoint one or more trusted individuals (the attorneys) to make decisions on their behalf if they lose mental capacity or are otherwise unable to make decisions for themselves. Generally, there are a few types of LP attorneys.
Source: OPG
1 – Property and Financial Affairs LPA
This allows the attorney to manage business-related transactions so that the donor is always at an advantage. They can perform these tasks legally even if the donor still has mental capacity unless the donor specifies otherwise. The attorney can handle tasks such as:
- Managing bank accounts and paying bills
- Selling or managing property
- Making investment decisions
- Claiming benefits or pensions
- Managing business affairs (if applicable)
Finance and property-related LPA can be complex; therefore, you should get a property solicitor to help you with power of attorney.
2 – Health and Welfare LPA
On the other hand, this kind of LPA is specifically meant to make decisions about the donor’s health. For example, if a donor gets sick or is in a position where making health-related decisions is difficult, they can opt for this LPA. Here, the attorney has the prerogative to decide on medical treatments and healthcare options and even where the donor should live (e.g., care homes or living arrangements). Plus, they can decide on whether the donor should receive life-sustaining treatment (if applicable). In fact, under some circumstances, the attorney can also be the first or even only consenter for an emergency treatment. So, that’s how power of attorney works.
What is an Enduring Power of Attorney (EPA)?
As mentioned earlier, the EPA allows your attorney to handle legally binding decisions. These can even help your attorney to ensure your rights are protected even when you are not in the right mind to deal with legal or medical complications. Unlike a Lasting Power of Attorney (LPA), which covers both financial and healthcare decisions, an EPA is specifically focused on property and financial affairs.
Scope and Limitations
EPAs come with a limited scope. An EPA only covers decisions related to managing the donor’s finances and property, such as:
- Paying bills
- Managing bank accounts
- Making decisions about property sales or purchases
- Handling investments
Key Difference Between LPA and EPA
So, now that we know about both of these kinds of powers of attorney. Let’s talk about the difference between lasting power of attorney and enduring for better clarity.
Feature | Lasting Power of Attorney (LPA) | Enduring Power of Attorney (EPA) |
Registration Requirements | You must register it with the Office of the Public Guardian (OPG). | Needs prior registration with the OPG when the donor begins to lose mental capacity. |
Scope of Authority | It covers both property and financial affairs and health and welfare (if both LPAs are created). | Registering enduring power of attorney is limited to managing property and financial affairs. |
Legal Framework | Governed by the Mental Capacity Act 2005, includes modern safeguards to protect the donor. | Created under pre-2007 laws, it lacks some of the safeguards introduced in the Mental Capacity Act. |
Costs and Timeframes | Registration fee is £82 per LPA (£164 to register both a property and financial affairs); it generally takes 8-10 weeks for approval. | Typically, registering an EPA involves lower costs, but processing time varies depending on when it is registered after the donor loses capacity. |
Availability | Can still be created and registered today. | No new creations were available after 2007. Existing EPAs remain valid. |
Setting Up Power of Attorney
Now, let us discuss how you can set up each type of attorney for your ease.
LPA Registration Process
- First of all, you need to send a form to notify people (LP3). This is for the people you want to notify that you are transferring your power of attorney. They have 3 weeks to raise concerns over this.
- After that, you should fill out all your forms and send them for OPG approval. Visitlastingpowerofattorney.service.gov.uk. There, you can find the “Lasting power of attorney” option.
- Select the type of LPA you would like to create. Afterward, add details like name, profession, etc, for both agents and donors. You must also add details about the donor’s witness and notification recipients.
- Pay your LPA registration fee, which is 82 pounds. Once your payment is complete, you can submit and print your LPA.Â
- Submit signed LPA application form. Make sure you provide copies of your photographic ID to the Judicial Grefee.Â
- Once you have registered, you will receive your final LPA from the authorities. Wait for 4-8 weeks for approval from Judicial Grefee. Once the authorities activate LPA, the attorney can practice their power legally.
To make this process easier and error-free, find a lawyer who can guide you in framing your LPA.
EPA Requirements
To set up the EPA in the UK, users didn’t really have to go through family courts. However, they needed several forms for this; here are some of the forms:
- EPA Form: Official Enduring Power of Attorney form.
- Proof of Identity:
- For the donor (e.g., passport, driving license).
- For each attorney (e.g., passport, driving license).
- Proof of Address:
- Recent utility bills or bank statements for both the donor and attorneys.
- Witness Signature: Signature of a witness on the EPA form.
- Notification Forms: Forms to notify relevant parties (if applicable).
Digital vs. Paper Applications
Wondering whether to go for an online or offline procedure? Here’s a comparison of these methods.
Aspect | Digital Applications | Paper Applications |
Process | Submit online via the Office of the Public Guardian (OPG) website. | Fill out and post paper forms to the OPG. |
Ease of Use | Faster with built-in error checks for accuracy. | Manual processes are prone to delays if forms are incomplete. |
Signatures | Requires digital confirmations and some physical signatures. | Requires physical signatures from all parties. |
Cost | Same registration fee: £82 per LPA. | Same registration fee: £82 per LPA. |
Timeframe | Typically 8-10 weeks, provided no issues arise. | Similar timeframe, but corrections may delay the process. |
Legal Framework and Safeguards
In order to ensure that your power of attorney process goes smoothly, UK law has certain bodies. These frameworks provide clear rules for decision-making and emphasise acting in the person’s best interests. Additionally, they make sure that attorneys are framed in a way that both attorney’s and donor’s rights are protected. To be precise, all the legal transactions in the power of attorney are done within the rules set by these frameworks. Let’s talk about these frameworks and safeguards in detail.
Mental Capacity Act 2005
This Act of 2005 clearly draws lines on the definition of “a person who is unable to make decisions.” It states that a person must be assumed to have capacity unless it is officially established that he lacks capacity. This ensures that LPA is only given in genuine cases.
It also underlines that a person is not to be treated as unable to make a decision just because he makes one or more unwise decisions. In addition to this, the principles of this act are revocation of attorney and scope of lasting powers of attorney. Plus, section 16 of this act talks about powers to make decisions for mental health patients, personal welfare, and even property and affairs.
Office of Public Guardian Role
This is an organisation that helps people in England and Wales take charge of their property, health, and welfare-related matters. In fact, this organisation oversees the registration process of LPA so that the process is transparent and fair from the very beginning.
The OPG ensures the proper use of powers granted under an LPA. It protects vulnerable individuals by overseeing attorneys’ actions. Furthermore, they investigate misuse of Power of Attorney and even maintain accountability to the donor.
Court of Protection
It’s yet another legal body that deals in LPA. It specifically deals with the decisions taken under the framework of the Mental Capacity Act of 2005. In the context of Power of Attorney, the court passes judgment on whether you are actually incapable of making your decisions by yourself or not.
This court takes a minimal application fee; however, under some circumstances, the court may even decide to offer you a fee exemption. Lastly, you can even challenge the decision of this court under some circumstances.
Compare your legal options and take control of your future today! Explore the right power of attorney for your needs now Get in touch with Lawyersorted.com. |
FAQs About Power of Attorney
What is the difference between lasting power of attorney vs enduring power of attorney?
An EPA is only for property and financial affairs and is valid once the donor loses mental capacity. An LPA can cover both financial and health decisions. LPAs also include modern safeguards under the Mental Capacity Act 2005, which EPAs lack.
How much does an LPA cost?
It costs £82 to register each type of LPA. You may qualify for a fee reduction or exemption if you have a low income or receive certain benefits.
How long does registration take?
It takes about 8-10 weeks to register an LPA if the application has no mistakes. Any errors can delay the process, so ensure accuracy before submitting.
Can I have both LPA and EPA?
Yes, if you made an EPA before October 2007, it’s still valid. You can create an LPA to cover areas like health and welfare that an EPA doesn’t include.
What happens if someone misuses their powers?
Misuse should be reported to the Office of the Public Guardian (OPG). They can investigate, revoke powers if necessary, and take legal action to protect the donor.
Can I cancel an EPA (Enduring Power of Attorney) ?
You can cancel an EPA while you still have mental capacity. Once capacity is lost, only the court can revoke it.
Which is better, enduring power of attorney or lasting power of attorney?
LPAs are better for most people as they are more comprehensive, covering both financial and health decisions, with added safeguards. EPAs are limited to financial matters.
Is an EPA better than an LPA?
Not usually. LPAs are more versatile, offering better protection for health and welfare decisions alongside financial issues.
What are the disadvantages of enduring power of attorney?
EPAs don’t cover health or welfare decisions, and they lack the safeguards introduced in the Mental Capacity Act 2005.
Does Lasting Power of Attorney override enduring power of attorney?
No, but an LPA can complement an EPA. They work independently, with LPAs covering additional areas like health and welfare.