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power of attorney

An enduring power of attorney (EPA) and lasting power of attorney (LPA) are both legal documents that allow someone to make decisions on your behalf should you become unable to do so. However, there are some differences between the two, and understanding these differences can help you make an informed decision about which one is right for you.

An enduring power of attorney is an older form of power of attorney, while a lasting power of attorney was introduced in 2007. The main difference between the two is the time when they come into effect – an EPA can come into effect immediately or only at a point when the donor, the person who made the document, is deemed to be mentally incapable. On the other hand, an LPA will only come into effect when the donor is mentally incapable.

One of the most significant benefits of an EPA is that it allows the donor to choose their attorney(s) and set out the specific powers that they have. This gives the donor more control over who will make decisions on their behalf and what those decisions will be. In contrast, an LPA does not allow for such specificity, and the donor does not have as much control over who will act as their attorney(s) or what powers they will have.

Another advantage of an EPA is that it does not need to be registered with the Office of Public Guardian (OPG) until the donor becomes mentally incapable. This can save both time and money as the registration process can be lengthy and costly. On the other hand, an LPA must be registered before it can be used, regardless of the donor's mental capacity. Registration includes a fee and can take up to 10 weeks to complete.

An enduring power of attorney is also more flexible than a lasting power of attorney. It allows for the donor to give their attorney(s) the power to make decisions in multiple areas such as financial affairs, property, and personal welfare. In comparison, an LPA is limited to two types of decisions: health and welfare and property and financial affairs. This means that if a donor wants their attorney(s) to make decisions in both areas, they will need to create two separate LPAs.

Furthermore, if someone has already created an EPA before 2007, they do not have to create an LPA. An EPA will still be valid and can be used after the donor becomes mentally incapacitated. This can save time and effort for the donor and their loved ones.

While both EPAs and LPAs have their advantages, it is essential to consider the potential risks associated with each. For example, an LPA does provide an additional layer of protection as it requires a certificate from a professional, such as a doctor or a solicitor, to confirm the donor's mental capacity before it can be registered. This can prevent an attorney from making decisions on the donor's behalf if they are not mentally capable of making those decisions.

Additionally, an LPA offers more robust safeguards to prevent abuse by the attorney. It requires the donor to name a ‘certificate provider’ – someone who must confirm the donor's mental capacity before the LPA is registered. They also have the power to revoke the LPA at any time if they suspect abuse or misconduct by the attorney.

In conclusion, both EPAs and LPAs have their unique benefits and drawbacks. EPAs provide more control and flexibility for the donor, while LPAs offer more safeguards to prevent abuse. Ultimately, the decision between the two will depend on the donor's personal preferences and situation. It is important to carefully consider all options and seek legal advice before making a decision to choose the one that best suits your needs.