Enduring Power of Attorney
An EPA can no longer be prepared but it can still be used so long as it was previously set up correctly. If there is no restriction as to mental capacity, it can be used at any time from the date it was signed with or without the approval of the Donor (the person granting permission to the Attorney). However, if anything is done without the Donor’s knowledge and they still have capacity, they are able to challenge the Attorney.
A Donor can revoke the EPA at any time whilst they still have capacity.
Once an Attorney suspects the Donor is or is becoming mentally incapable they MUST register the EPA at the OPG. Read HERE to see why.
If there is a mental capacity restriction within the EPA, the Attorney cannot act under it without a GP report and Registering the EPA at the OPG. This is because, once registered, the Donor can no longer make financial decisions for themselves. Because of this draconian impact, most Donor are choosing to revoke their EPAs and make LPAs instead.
The EPA should NOT be registered whilst a Donor still has capacity to make financial decisions.
An EPA ends on the death of the Donor.
General Power of Attorney
A GPA is effective from the moment it is signed by the Donor in the presence of two witnesses.
It can be used to govern all financial decisions, or specific decisions for a specific time period. Read HERE to learn more.
A GPA never needs registering because it is acted under with the consent of the Donor. However, it will end either on the Donor’s loss of capacity, on their death or on completion of the specific task.
Lasting Power of Attorney (Financial)
As with the EPA and GPA the LPA can be produced to govern decisions relating to the full spectrum of financial decision making, or it can be limited to specific assets. The Donor can also set out Instructions (which are binding on the Attorney) or preferences (which acts as guidance).
The LPA can stipulate that the Attorneys are to act jointly and separately in relation to some decisions and jointly over certain other decisions. As this could effectively result in the LPA becoming useless if not drafted correctly and to suit individual needs, a Donor should take independent and bespoke legal advice before preparing the LPA so as to including such restrictions.
The LPA MUST be registered with the OPG before it can be used and thereafter it can be used at any time unless the Donor has added the mental capacity restriction.
The Attorneys must comply with the provisions of the Mental Capacity Act 2005 and the principles of always helping the Donor to make their own decisions at all times in future unless it is established that that particular decision is outside of their abilities.
The Attorneys must always act in the Best Interests of the Donor and cannot, for example, make large gifts using the LPA without the approval of the Court of Protection.
The LPA can be revoked by the Donor at any time or, if the OPG suspect mismanagement, they can apply to the Court of Protection to have the Attorney(s) removed from acting.