I HAVE AN EPA, DO I NEED AN LPA?

Mar 02, 2022

I ALREADY HAVE AN EPA, DO I NEED LPA'S?

You may have an Enduring Power of Attorney (EPA) in which you have appointed people you know and trust, or a professional, to act as your attorney. This may be to help you manage your affairs now or limited to allow your attorneys to make decisions for you in future if you lose capacity to make decisions yourself. EPAs were replaced by Lasting Powers of Attorney (LPAs) from 1^st October 2007, so it has not been possible to create new EPAs since then.

If you have an EPA in place already you may be wondering whether or not you need an LPA. Often the answer to this question is no, there’s no need to replace your existing EPA if it was drafted and signed correctly and if your wishes remain the same. That’s not to say there aren’t good reasons for considering an LPA though.

1. EPAs only cover financial affairs

At the time you made your EPA it wasn’t possible to appoint attorneys to make decisions about your personal welfare. An EPA only deals with your finances and allows attorneys to make decisions about selling your home, making gifts, and managing your bank accounts and bills. To give someone legal authority to make decisions about your health, care, and life sustaining treatment you need a Health & Welfare LPA in place.

2. Creation of LPAs is more secure

The process of making an LPA is a bit more involved as there are more safeguards in place. For an LPA to be valid it must be signed by a certificate provider; this is a person who can confirm that you have capacity to make the LPA and that no one is placing any undue pressure on you to coerce you into making the document or appointing them as an attorney. This provides more protection for you if later on an attempt is made to set aside your LPA on the grounds of lack of capacity, as the certificate provider would be able to verify that you have capacity at the time the document was made.

3. LPAs let you appoint replacement attorneys

Under an EPA it wasn’t possible to name replacement attorneys, so if your original attorneys could no longer act for any reason the EPA would cease. This would leave you with no one in place to make decisions on your behalf unless an application was made to the Court of Protection to appoint a Deputy. In an LPA you can nominate replacement attorneys to step in and act if your original attorneys die or stop acting. This provides an additional safeguard for you.

4. More flexibility

LPAs allow a wider range of options for you to make your wishes known to your attorneys. Under an EPA you could include restrictions on how your attorneys can make decisions, or what they can make decisions about. This is still present in an LPA, now titled ‘instructions’, but additional to this an LPA lets you state your preferences. These are not binding on your attorneys but nevertheless still useful for letting your attorneys know how you would like them to act and what you would prefer they consider when making decisions on your behalf.

5. Stronger supervision

LPAs are safer. Unless you have included a restriction in your EPA that states otherwise, your attorneys can use your EPA while you have capacity and without registering it with the Office of the Public Guardian (OPG). The EPA only needs to be registered once you have lost or are starting to lose capacity. This unfortunately opened EPAs up to abuse by unscrupulous attorneys and was part of the reason that LPAs were introduced to replace them.

An LPA for financial affairs can be used either while you still have capacity or only after you’ve lost capacity (you can state which) but it must be registered with the OPG before the attorneys can use it.

The registration fee for both EPAs and LPAs is £82, payable directly to the OPG.

If you have an EPA in place now is a good time to consider reviewing your planning. Whether it is to keep your existing EPA in place but draw up an LPA for your Health & Welfare, or to replace your EPA with an LPA for Property & Financial affairs to take advantage of the stronger safeguards and flexibility.

For professional advice and support with creating an LPA, please call us on 0800 0747 642 or 01206 544919 and a member of the team will be more than happy to help.

source: Society of Will Writers

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General Powers of Attorney

By Julia Newlove • 22 Nov, 2023

Normally when we think of powers of attorney we think of Lasting Power of Attorney (LPAs). These documents allow a donor to appoint attorneys to make decisions on their behalf should they lose capacity to make their own decisions. They can be made to appoint someone to make decisions about health and welfare as well as property and financial affairs. In the case of managing financial affairs an LPA can also be used while the donor still has capacity to make their own decisions, making them useful for someone who has mental capacity but maybe still needs a bit of extra support. General Powers of Attorney (GPAs) are very different. This type of document can only be used by a donor wishing to appoint an attorney to manage their financial affairs and is only valid while the donor has mental capacity. As soon as capacity is lost the GPA is no longer useable and the attorney can’t make any more decisions for the donor. So why choose a General Power of Attorney right now? At the moment LPA applications are progressing quite slowly. The Office of the Public Guardian is doing it’s best to process applications within their target of 40 days, but like many companies right now they are running on reduced staff. This means that it’s taking longer to get an LPA registered, and if there are any issues with it it’s currently difficult to contact the OPG by phone. The more pressing issue though are the barriers to getting the LPA completed in the first place. Completing an LPA requires a donor, a certificate provider, at least one attorney, and a witness to witness the donor and all attorney’s signatures. In an ideal world the certificate provider could act as the witness to all people involved limiting the amount of people who need to be involved in the signing, but even without the current social distancing rules managing to gather the donor and all of their attorneys together is a rare occurrence, with attorneys often living far away from the donor. For a person who needs someone to make decisions for them right away a GPA can be a great alternative currently. There is no registration requirement, so the document is ready to use as soon as it has been properly signed. There are also less people involved in the creation of a GPA. The only people who need to sign are the donor themselves and a witness. There is no need for a certificate provider, and no need for the attorney to sign. The GPA is executed as a deed poll by the donor, so the rules on who can act as a witness for them are not strict. The witness must be over 18, have capacity, and can’t themselves be a party to the deed. The attorney isn’t strictly a party to the deed as they aren’t a signatory, but it is still best to avoid them acting as a witness. What this does mean though is that someone else in the household could act as the witness, allowing the document to be made without placing anyone at any risk. What this doesn’t mean… This doesn’t mean that LPAs should be forgotten about altogether. Since a GPA ends if the donor loses capacity it is still best to make sure that steps are being taken to get an LPA put in place as soon as it’s possible to do so. The body content of your post goes here. To edit this text, click on it and delete this default text and start typing your own or paste your own from a different source. source SWW

What happens if a Will is lost?

By Julia Newlove • 03 May, 2023

Benefits of professional storage

Did you know that this can affect your Will?

By Julia Newlove • 01 Mar, 2023

2023 could be the year of change for you, whether it be a new home, new job, marriage, divorce, or a new member of the family. Whatever it might be, are you aware of some of the different ways in which your Will could be affected? New Home If you have bought a new home, congratulations! Does your current Will include your previous home address? If so, please get in touch with your will writer to have your Will updated to ensure your new property is covered in your Will. What if this is not done? If for example your current Will gifts a property to your son and this property does not exist at the date of your death, the gift will fail. Marriage Did you know that marriage automatically revokes a Will? If your intention is for all your assets to go to your new spouse this is fine but at times, if you have children from a past relationship that you want to provide for, they can be disinherited. This would have the effect that on your death, your children receive nothing, everything passes to your new spouse and then to their loved ones. Of course, your children could challenge the will under the 1975 Inheritance (Provision for Family and Dependants) Act, but this is costly and time-consuming. To prevent the above, it is best to review your existing Will before you get married and either re-write it or include a contemplation of marriage clause in it. This is where you express a contrary intention to the ‘automatic revocation’ of your Will upon getting married. Specifically, this clause is a declaration within your Will that your intended marriage to your potential future spouse shall not have the effect of revoking your Will. Divorce Whilst divorce does not automatically revoke your Will, the reality is that you probably will not want your ex-spouse to benefit from your Will or any part of your estate. The good news is that the ex-spouse is treated as if they died when the divorce was finalised (decree absolute) and therefore cannot inherit from you. If there are any gifts to them in your Will, they will fail. However, if you did want your ex-spouse to benefit from your estate or receive something in your Will, you would need to have a provision in your will to state Section 18a Wills Act 1837 will not apply. Did you know an ex-spouse can try and claim from your estate on your death if they feel as if they should “have been given a piece of the pie” and had reasonable financial provision made for them? The best way to get around this is to exclude them from your Will and have the letter of wishes set out the reasons for this exclusion so if it ever is challenged, the Courts can look at what you have stated and consider it when reaching their verdict. Children Your current Will may state “children” or alternatively specifically name your children. If your Will states “children” this provides for any children that are living at the date of your death. However, if your current Will specifically names your children and you have had more children since, you will need to update your Will to include them also. With marriage could come step-children so let’s take a look at this now. Apart from legislation relating to the residence nil rate band, did you know step-children are not included in the automatic definition of “children, issue or descendants” when it comes to your Will? You may class them as your own children as you have looked after them for many years but even if this is the case, they will not benefit if your Will gives your estate to your children. Of course, they can challenge the Will on your death but to prevent costly and time-consuming litigation, if you wish for them to benefit under the terms of the Will, either specifically name them or have “children and step-children” written in the Will. Your estate planner will advise on this during your meeting. Property Abroad If you own a property abroad i.e. Dubai? We would advise you to have a Will in place in the country where the property is held. It is important to ensure the Will is restricted to assets in that country only. Why is this? If you write a Will in 2019 and then see a will writer in Dubai in 2022 and this specific Will is not restricted to assets in Dubai only, your 2019 will be revoked. If you wish to make amendments to your Will, have a new Will written or any supporting documentation, simply contact Paragon Legal Services Ltd who will be able to assist with putting these changes in place or draft any new documentation for you. Remember, if you have a new Will written, it will revoke any previous Wills. source SWW