Is an Enduring Power of Attorney still valid today?

What is an Enduring Power of Attorney?

This is a document appointing another person (attorney) to manage the property and financial affairs of another (donor). Since the 1st October 2007, it is no longer possible to make an Enduring Power of Attorney. A Lasting Power of Attorney for Property and Financial Affairs replaced Enduring Powers of Attorney. However, Enduring Powers of Attorney, signed before the 1st October 2007, are in fact still valid.

Are there any similarities between an Enduring Power of Attorney and a Lasting Power of Attorney for Property and Financial Affairs?

Like a Lasting Power of Attorney for Property and Financial Affairs, an Enduring Power of Attorney can continue in force after the person granting the power of attorney loses capacity.

What are the differences between Enduring Powers of Attorney and a Lasting Power of Attorney?

With an Enduring Power of Attorney, registration can only take place once an attorney has reason to believe that the donor has lost capacity. Prior to then, it cannot be registered. However, the power of attorney can still be used even though it has not been registered. In fact, with an Enduring Power of Attorney, an attorney is under an obligation to register the document as soon as they have reason to believe that the donor has lost capacity. Whilst the registration process is taking place, the attorney can only use the power of attorney for very limited reasons. During the period between the application to register and the registration of an Enduring Power of Attorney, an attorney may only use it in limited ways:

1. To maintain the donor
2. To prevent loss to their estate
3. To maintain dependents

With a Lasting Power of Attorney, the power of attorney does not need to be registered at the time it is created, however, it cannot be used until it is registered.

Is it appropriate to make a Lasting Power of Attorney if the donor already has an Enduring Power of Attorney in place?

Since the 1st October 2007, a donor has the option of taking out a health and welfare power of attorney, which wasn’t available before then, and/or a Lasting Power of Attorney for property and financial affairs.
Financial Lasting Powers of Attorney are far more flexible and comprehensive than an Enduring Power of Attorney. For instance, with a Lasting Power of Attorney you can include replacement attorneys, whereas with an Enduring Power of Attorney you could not. If you make a Lasting Power of Attorney, you can choose whether you wish for it to be used for physical incapacity as well as mental incapacity.

Benefits of revoking an Enduring Power of Attorney

If you already have an Enduring Power of Attorney, there can be benefits in revoking it and creating a new Lasting Power of Attorney. It is important to bare in mind that the Enduring Power of Attorney previously created will be more than 12 and a half years old and may well be out of date.

One or more of the attorneys may have died or have lost capacity themselves or, for some other reason, may no longer be suitable to be your attorney. It may be that at the time you made the power of attorney your children were young, but they may now be adults and would be the best people to be your attorney.

Using a Lasting Power of Attorney means that you could include replacement attorneys in case any of the main attorneys die.

Another benefit with a Lasting Power of Attorney is that you can register it now, so that if you become mentally incapable, there will not be a gap whilst you are registering the Enduring Power of Attorney when you can only use it in very limited ways. It can be quite frustrating for an attorney to have to wait to make full use of the Enduring Power of Attorney whilst it is being registered. There is also a procedure to follow in registering an Enduring Power of Attorney which some people find burdensome. It includes handing a copy of the notice to the person who is losing capacity and also serving notice on certain family members. There is a cost involved in this too.

It is not unusual for clients to review their legal documents to decide to replace an Enduring Power of Attorney with a new Lasting Power of Attorney for property and financial affairs, whilst at the same time, make a new health and welfare power of attorney which deals with welfare issues if you lose capacity. By creating a new financial power of attorney now, future worry and stress for your family can be avoided, who would need to take steps to register the power of attorney when the donor becomes incapable.

To summarise, an Enduring Power of Attorney is still likely to be valid but may well be out of date. It will certainly need to be reviewed and consideration should be given to entering into new Lasting Powers of Attorney, both financial and health and welfare. Of course, it will be too late to do so once the donor has already lost capacity.

To speak to a solicitor who specialises in the creation and registration of Lasting Powers of Attorney, call Winston Solicitors on 0113 320 5000 or email mkv@winstonsolicitors.co.uk