I have an Enduring Power of Attorney – do I need a Lasting Power of Attorney?

By Paul Warren
In August 7, 2018
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A lot of Clients we meet tell us they have an Enduring Power of Attorney in place and so believe they have all the cover they need should someone need to take over decision making on their behalf. But is this really the case?

I have an Enduring Power of Attorney – do I need a Lasting Power of Attorney?

Enduring Powers of Attorney (EPAs) were documents that allowed you to nominate someone you trust (an attorney) to make decisions for you about your property and money. EPAs do not cover health and care decisions.

Only EPAs made and signed before October 1, 2007, can still be used.

How is a Lasting Power of Attorney different?
Lasting Powers of Attorney (LPAs) replaced EPAs and come in two forms: one for decisions regarding finance and property and the other for decisions regarding health and care.

Financial decisions LPAs do the same thing as Financial decisions EPAs. The difference is that you register your Financial Decisions LPA as soon as they are made, so there’s no delay if your attorney needs to use it. Your attorney can use the Finance LPA straight away if you give them permission.

In contrast, your attorneys register your EPA when you start to lose mental capacity, and if there’s a restriction in the EPA, they’ll also have to get evidence at that stage from your doctor, adding a bit more delay. The attorneys must also comply with a process of notification, ensuring the correct people are notified in priority order. They’ll have to make all reasonable attempts to notify the correct people, which could lead to further delay.

I made an EPA – should I make an LPA for financial decisions instead?
There can be an 8-12 week delay when registering EPAs and LPAs with the Office of the Public Guardian. With a Financial Decisions LPA, this typically isn’t an issue because you will have made and registered it whilst in good mental health. With a Financial Decisions EPA, sometimes this is an issue – for example, if you have lost capacity very suddenly (such as in the case of an accident or stroke) and the attorneys need to quickly access to funds to pay for your care.

I made an EPA – do I also need a Health and Care Decisions LPA?
In short, 100% yes. If you don’t have this and lose mental capacity, the only option is a Deputyship Order – BUT the courts are very reluctant to grant such orders unless a specific decision needs their intervention. The Court’s view is that day-to-day care decisions are covered by provisions of the Mental Capacity Act and to make an order in most cases would be unnecessary.

Unfortunately, families often face disagreement, either between themselves or with carer organisations such as social services, as to how a person should be cared for. For example, the family might want their relative to live in assisted housing, whilst the person’s social worker may want them to live in a residential care home. In such circumstances, the only option is to apply for a court order. The family in making the application will have to notify the persons in disagreement at this stage, and those persons will typically put forward their opposing point of view. A court hearing will be necessary, and costs escalate quickly into the thousands.

In short, making a health and care LPA is a ‘no-brainer’ – it saves the possibility of wasted time, stress and expense further down the line.

Redwood Financial is one of the souths leading Wills, Trusts & Estate Planning providers and we are dedicated to helping families to grow, protect and enjoy their wealth. With our unrivalled knowledge of estate administration, we can advise on any situation. Come along to one of our FREE Public Seminars on Wills, Trusts & Estate Planning. Book online at Book Me A Place!: call us on 01489877 547 or Email info@redwoodfinancial.co.uk.

Source: April King

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