If you signed a Power of Attorney before 1 October 2007, you probably have a document known as an Enduring Power of Attorney (EPA). EPAs were replaced by Lasting Powers of Attorney (LPAs) nearly two decades ago, but they didn’t disappear overnight. Any EPA that was validly made before that date is still legally recognised today, provided it’s used correctly. The problem is that many people don’t realise this, and either assume the document is out of date and start from scratch, or, more commonly, don’t realise it needs to be registered in certain circumstances, and that this process can take time just when time is of the essence.
EPA or LPA: How to Tell the Difference
The purpose of these documents is very similar but there are a few clear differences:
Date signed: If it was signed before 1 October 2007, it’s an EPA. LPAs didn’t exist before this date.
Scope: An EPA only ever covers property and financial affairs. If your document also gives someone authority over health and welfare decisions, it’s an LPA, not an EPA, health and welfare LPAs weren’t introduced until the Mental Capacity Act 2005 came into force.
Registration status: LPAs must be registered with the Office of the Public Guardian (OPG) before they can be used at all. EPAs work differently and this is where most confusion happens.
When Do You Have to Register an EPA?
This is the detail that catches people out. An LPA has to be registered before the attorney can act, whether or not the donor (the person who made it) still has mental capacity. An EPA is different: it can be used straightaway for financial matters while the donor still has capacity, without being registered at all.
Registration only becomes compulsory once the attorney believes, or has reason to believe, that the donor is becoming, or has become, mentally incapable of managing their own affairs. At that point, the attorney has a legal duty to apply to register the EPA with the OPG before continuing to use it.
In practice, this means many EPAs sit in a drawer for years, perfectly valid but never registered, because they’ve never needed to be. The risk is that families only remember the document exists once capacity has already declined significantly, often at a moment of crisis, when a bill needs paying, a care home needs instructing, or a property needs to be sold, and there’s no time to spare.
What Does the Registration Process Involve?
Registering an EPA isn’t simply a case of sending a form to the OPG. The attorney must first give written notice of the intention to register to the donor and to certain relatives, using a set order of priority set out in the Mental Capacity Act 2005, this exists to give family members the chance to object if they have concerns about the attorney’s suitability or the validity of the document. Only once that notice period has passed can the application proceed.
There are also specific, and sometimes difficult, circumstances the OPG will want addressed:
What happens if the document is old, faded, or has been amended by hand?
What if a named relative who should receive notice has died, or their whereabouts are unknown?
What if more than one attorney was appointed and they no longer agree on next steps?
What if there are concerns about whether the donor actually still has capacity, and by extension, whether the attorney’s judgement on this point can be challenged?
Getting the notice requirements wrong, or missing a step, can delay registration for weeks at exactly the time speed matters such as when care fees need to be paid or a property sale is time-critical.
What Happens If There Is No EPA or LPA at All?
If capacity has already been lost and no EPA or LPA was ever put in place, the only route is an application to the Court of Protection for what is known as a deputyship order, a longer, more expensive, and more heavily supervised process than registering an existing EPA or LPA. We’ll cover deputyship in more detail in a future post, but it’s worth flagging here: an unused EPA sitting in a drawer, however old, is still a far better starting point than having nothing at all.
Our Advice
If you hold an EPA for a parent, spouse, or other family member, even one signed decades ago, it’s worth having it reviewed now, before a crisis forces the issue. We can confirm whether it’s still valid, advise on whether registration is currently required, and if so, guide you through the notice process correctly the first time.
If you’re not sure whether a document in your possession is an EPA or an LPA, or whether it’s been registered, our Private Client team can check this for you and explain your options.
Get in touch with our Private Client team to discuss an existing Power of Attorney, or to put a new Lasting Power of Attorney in place.
The contents of this post do not constitute legal advice and are provided for general information purposes only ■