I have had many clients recently asking me whether they should update their old form Enduring powers of attorney, to bring them into line with the new system of Lasting powers of attorney, so I thought a blog about the differences would be useful.
A lasting power of attorney (LPA) is a document which allows someone who you authorise, to act in your place, should you be unable to do so. There are two types – a financial and a health and welfare.
Before 1st October 2007 an enduring power of attorney (EPA) could be put in place to authorise someone to look after your financial affairs only.
Here is a summary of the main differences between these documents:
- Creation and Validity
EPAs were the standard before 1 October 2007, meaning they can no longer be created. However, if an EPA was properly executed before this date, it remains valid.
LPAs, introduced by the Mental Capacity Act 2005, replaced EPAs and became available from 1 October 2007 onwards. If you’re looking to set up a new Power of Attorney today, LPAs are the only option. - Scope of Powers
One of the biggest differences between EPAs and LPAs is what they cover:- EPAs: Only apply to property and financial affairs. Attorneys managing an EPA cannot make decisions about health or personal welfare.
- LPAs: Come in two types:
- Property and Financial Affairs LPA: Works similarly to an EPA but with additional safeguards.
- Health and Welfare LPA: Allows attorneys to make decisions regarding health, care, and living arrangements—but only when the donor loses mental capacity.
- Registration Requirements
EPAs are effective immediately after execution, as long as the donor still has capacity. However, if the donor starts losing capacity, the EPA must be registered with the Office of the Public Guardian (OPG).
LPAs, on the other hand, must be registered with the OPG before they can be used, regardless of whether the donor currently has capacity. - Appointment of Attorneys
Another limitation of EPAs is that they did not allow the appointment of replacement attorneys. If an attorney could no longer act, a new arrangement had to be made.
LPAs, however, allow replacement attorneys to be named in the document—ensuring flexibility if an original attorney becomes unable to act. - Safeguards and Formalities
EPAs had fewer safeguards and did not require an independent certificate provider to confirm the donor’s understanding or ensure they were acting freely.
LPAs include enhanced safeguards—a certificate provider must confirm the donor understands what they are doing and is not under undue pressure. This makes LPAs more robust and protective against abuse. - Use and Revocation
Both EPAs and LPAs can be revoked by the donor as long as they still have mental capacity.
However, once an EPA is registered, revocation requires confirmation by the Court of Protection.
Similarly, if an LPA has been registered and the donor loses capacity, it can only be revoked via the Court of Protection. - Gifts and Other Powers
Attorneys under both EPAs and LPAs have limited powers to make gifts. They can only make reasonable seasonal gifts or donations to charities the donor supported. Larger gifts require approval from the Court of Protection. - Transition and Co-existence
Although new EPAs cannot be made today, existing EPAs remain valid. However, donors might want to supplement their EPA with a Health and Welfare LPA, since EPAs do not cover personal care decisions.
For new arrangements, only LPAs can be created, ensuring a more comprehensive framework.
If you’re managing someone’s affairs or planning for the future, understanding the difference between EPAs and LPAs is essential. While EPAs may still be in use, LPAs provide a modern, flexible, and more secure option for protecting your interests.
I act as attorney for an elderly client, who was sensible enough to get me to do her will and LPAs some years ago now, and we are now reaping the benefits as she is now 94 and has Alzheimer’s. The health and welfare LPA that she signed, allows me to speak to the medical staff at the hospital and doctors’ surgery, in person or on the phone, on her behalf, and I coordinate the care team that visit her four times a day. I also pay all her bills on her behalf using the financial LPA, and I have full access to her bank account via their app and voice recognition.
I should also add that I have also put in place lasting powers of attorney for my lovely daughter, as once your children turn 18, you no longer have a right to speak on their behalf. We none of us know what is around the corner, and I have known terrible things to happen to young people, who just did not think it would happen to them. So get your young people to sign LPAs in your favour.
