Do I need an LPA if I have an EPA in place?

If you have an Enduring Power of Attorney (EPA) in place, you may wonder whether you now need to organise a Lasting Power of Attorney (LPA), following their introduction in 2007.

Whilst a new EPA can no longer be made, any EPAs which have already been drawn up and signed are still valid, albeit they are limited to dealing with property and financial decisions. Initially, an EPA does not need to be registered if the person who made it (the Donor) still has mental capacity however, once the Donor loses capacity the EPA will need to be registered. An existing EPA (whether or not it has been registered) cannot be changed, and there are therefore risks if the person you appointed as an attorney is unable to act for any reason as there is no scope for a contingency with an EPA in terms of appointing a replacement attorney. Ultimately, if the appointed attorney cannot act then the EPA cannot be used and an LPA may need to be drawn up, if the Donor has capacity, or otherwise a Deputyship Application would be required. 

In contrast, an LPA can be made for decisions relating to health and welfare, in addition to those regarding property and finances. LPAs also allow for decisions to be made ‘jointly and severally’: this would mean that attorneys can make a decision alone, or in conjunction with other attorneys, which can often allow for more flexibility in how the duties of an Attorney are carried out. An LPA also allows for the provision of ‘replacement attorneys’, who can step in if your initial appointed person is unable to act. Whilst there is still a chance that both the appointments of the initial and replacement attorneys could fail, having a replacement attorney does give some degree of safeguarding against this happening.  

Whilst EPAs are still valid, and do not necessarily have to be replaced, LPAs are designed to provide greater protection and flexibility for both the donor and the attorneys. It is not uncommon for a person who has made an EPA to then make an LPA for their health and welfare.

If you require any assistance either registering an existing EPA, or creating new LPA’s, please contact our Practice Development Manager, Richard on 01925 263273 or rbruce@fionabruce.co.uk. 

The contents of this article do not constitute legal advice and are provided for general information purposes only.