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Enduring Powers of Attorney vs Lasting Powers of Attorney

An Enduring Power of Attorney is a document that individuals were able to create until 2007 to give legal authority to act on someone else’s behalf in relation to property and financial matters which could continue after the person giving authority lost mental capacity.

Enduring Powers of Attorney were replaced by Lasting Powers of Attorney in 2007. Although new Enduring Powers of Attorney cannot be created, existing Enduring Powers of Attorney can still be used.

There are however some significant differences between Enduring Powers of Attorney and Lasting Powers of Attorney. Enduring Powers of Attorney only deal with property and finances, and do not give any power to act in relation to a person’s health and welfare. However, it is now possible to make a Lasting Power of Attorney allowing your Attorneys to be able to make decisions regarding health and welfare. Attorneys can make decisions about issues such as medical treatment and care decisions. It can also allow your Attorneys to refuse or consent to life sustaining treatment.

Lasting Powers of Attorney have a number of other advantages compared to Enduring Powers of Attorney.

Unlike Enduring Powers of Attorney, Lasting Powers of Attorney can provide more flexibility in the appointment of Attorneys. It is now possible to appoint replacement Attorneys, ensuring that the Lasting Power of Attorney can continue to be used even if your original Attorneys can no longer act for you.

There are also practical disadvantages if the person who made the Enduring Power of Attorney loses capacity. An Enduring Power of Attorney came into effect as soon as it was completed and signed by the Donor and Attorneys. However, when the Donor starts to lose or has lost mental capacity the Enduring Power of Attorney has to be registered with the Office of the Public Guardian before it can be used again.

The process to register the Enduing Power of Attorney is complex and time consuming. It involves the Attorneys giving notice of the application to the Donor, any Co-Attorneys and at least three close relatives. Anybody notified can object to the registration.

The process to register a Lasting Power of Attorney is more straightforward. The Lasting Power of Attorney must be registered with the Office of the Public Guardian before it can be used, even if the Donor still has mental capacity. Usual practice is for the Donor to apply to register the Lasting Power of Attorney straight away after they and the Attorneys have signed it. The property and affairs Lasting Power of Attorney can then be used both before and after the Donor loses capacity, however the health and welfare Lasting Power of Attorney can only be used when the Donor has lost capacity. This difference in the registration process prevents the Attorneys having to wait a number of weeks to use it, if the Donor does lose capacity.

Lasting Powers of Attorney also gives more protection to Donor. In order to create a Lasting Power of Attorney, someone called the Certificate Provider must certify that the Donor has mental capacity, that they are not being pressured into making the Lasting Power of Attorney and that the Attorneys are of their choosing. This extra protection ensures that people are not taken advantage of and naming Attorneys who might commit financial abuse.

If you or any of your loved ones have an Enduring Power of Attorney in place but would like to discuss updating this to a Lasting Power of Attorney please call our Priorities Team on 01482 326511 for more information.

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