Q: Years ago my father had an Enduring Power of Attorney which enabled me to handle his affairs. My cousin recently decided to do the same after suffering a potentially life-threatening illness but was told she must create a Lasting Power of Attorney. What is the difference between an EPA and an LPA?
A: EPAs could only be made until 30th September 2007, when the Mental Capacity Act 2005 came into force. They were replaced by LPAs. EPAs made before law changed are still valid and may be used immediately whilst the person who created the EPA has mental capacity. When a person has lost capacity to deal with their own affairs, the EPA must be registered with the Office of the Public Guardian for it to continue to be used.
LPAs are slightly different as they must be registered before they may be used, irrespective of capacity. There are two types of LPA; a Property and Financial Affairs LPA which allows you to appoint an attorney to manage your property and finances, and a Health and Welfare LPA which allows you to appoint an attorney to make decisions on your behalf regarding your medical treatment and welfare, but only when you have lost capacity to make the decisions yourself. In the Health and Welfare LPA, you may specifically give your attorney(s) the ability to give or refuse consent to life-saving medical treatment on your behalf.
Unlike the EPA, the creation of an LPA is rather involved and includes a number of safeguards, including a requirement that the person setting up the LPA is certified to have the mental capacity to do so, and is doing so without being subjected to any pressure or fraud. A solicitor, medical professional or a person who has known you for a certain amount of time is able to provide the necessary certificate.