ENDURING Power of Attorney
(EPA)
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LASTING Power of Attorney (LPA)
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Making an EPA
An EPA
- Must be set out in the legally required format.
- Must have been made &
signed by donor and ALL Attorneys before 1st October 2007.
- Therefore can no longer
be made.
- If made before 1st October
2007, continues to be valid after 1st October 2007.
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Making an LPA
An LPA
- Can now be made.
- Must be set out in the legally required format
- As a safeguard , it must have a
'certificate' section that must be completed by an independent person to confirm that you, as
the donor, understand the power and importance of the LPA and that you are not under any
pressure to make it
- As a second safeguard , can contain the names of
anyone you as the donor want to be notified of any application to register the LPA. If there is
no one to be notified, you must say so and have a second certificate.
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Types of EPA
There is only ONE
type of EPA:
- You appoint Attorneys to take care of your
property and affairs.
There is therefore only one type of EPA document.
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Types of LPA
There are TWO
types of LPA:
- The LPA - 'Property and Affairs' - You
appoint Attorneys to take care of your property and
affairs.
This effectively replaces the old
EPA.
- The LPA - 'Personal Welfare' - You appoint
Attorneys to take care of your personal welfare and healthcare.
This is a completely new type of document - although to some
extent it can be said to replace the old so-called 'Living Will'.
There are therefore TWO types of LPA document:
one separate document for each type of LPA.
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If all Attorneys are unable to Act
- or if you appoint your Attorneys to act 'Jointly' and just one of
them is unable to act -
The EPA ceases
immediately.
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If all Attorneys are unable to Act
You can appoint Replacement Attorneys when you create the LPA -
ensuring that the LPA continues
to be valid.
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Decisions the Attorney(s) can make
Unless you put limitations on the EPA, the Attorney(s) can make
exactly the same types of decision about your property and financial affairs as you can when you
have the mental capacity to do so. But the Attorney(s) cannot make decisions about your personal
welfare.
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Decisions the Attorney(s) can make
Depending on the type of LPA you as a donor make and any limitations
you include, your Attorney(s) can make decisions about your:
- Property and financial Affairs and/or
- Personal Welfare (including giving or refusing consent to
treatment). Your Attorney(s) will only be able to make health and welfare decisions for you if
you lose the capacity to do this for yourself.
Note that the two options above are catered for by both
separate LPA documents: 'LPA -
Property and Affairs' and 'LPA - Personal Welfare' mentioned in the
'Types of LPA' section above.
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When the instrument comes into operation
An EPA comes into operation as soon as it has been completed and
signed by you, your Attorney and the witnesses, unless you put in a limitation to say that the EPA
will not come in to operation until you lose mental capacity or that it will start from a future
specified date.
If you lose mental capacity in the future, your EPA will remain
legally effective as long as your Attorney(s) registers it.
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When the instrument comes into operation
Your Attorney(s) cannot act under an LPA unless it is registered with
the Public Guardian.
The LPA can be registered with the Public Guardian at any time
either before you as the donor lose the mental capacity to make decisions for yourself or when your
attorney(s) have reason to believe that this has happened.
The Attorney(s) you have appointed to make personal welfare
decisions can only use this power once the LPA has been registered and provided that you cannot
make the required decision for yourself.
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The duty of the Attorney(s)
With an EPA your Attorney(s) have a duty to apply to the Court of
Protection to register the EPA if they have reason to believe that you have lost or are losing the
mental capacity to make the necessary decisions for yourself. Under an EPA your Attorney(s) have
only a common law duty to act in your best interests.
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The duty of the Attorney(s)
Your Attorney(s) under an LPA have a statutory duty to act in your
best interests.
The duties of your Attorney(s) are also set out in the Mental
Capacity Act Code of Practice and they must be aware of this and follow the guidance provided by
the Code.
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The donor’s ability to make decisions
Until your EPA is registered, both you and Attorney(s)(s) have equal
authority to make decisions about your property and financial affairs.
If the EPA is registered, in theory you can still make decisions
about your property and financial affairs, if you are capable of making them at the
time.
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The donor’s ability to make decisions
As the donor, you can carry on making decisions, provided you have the
capacity to do so.
The Attorney(s) can only make personal welfare decisions that the
donor is incapable of making, or which they reasonably believe the donor is incapable of making, at
the time (Note: 'LPA - Personal
Welfare' only).
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Registering the power
It is your Attorney's duty to apply to the Court of Protection to
register your EPA when they have reason to believe that you have lost or are losing the mental
capacity to make the necessary decisions for yourself.
Before applying to the Court, the Attorneys must give written
notice of the application to:
- you as the donor,
- any co-Attorneys and
- at least three of your closest relatives.
Any of those who receive notice of the application to register can
object to the registration.
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Registering the power
Either you as donor or your Attorney(s) can apply to the Public
Guardian to register your LPA. The application can be made at any time after the LPA has been
executed (i.e. signed and witnessed).
Before applying to register the LPA, whoever is doing it must
notify the persons named by you as the donor as being entitled to receive notification of the
application.
The Public Guardian will give notice that the application has been
received to
- you as the donor, and
- the Attorneys
Your relatives will not be automatically notified of the
application to register the LPA unless you have named them as being persons who should be given
notice.
As well as your Attorney(s) and the persons you have said should be
notified, you as the donor can also object to the LPA being registered.
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Revoking (cancelling) the power
As long as you have the mental capacity to do so, as the donor you can
revoke or cancel an unregistered
EPA at any time without the need to make an application to
the Court of Protection
The Court of Protection must confirm any revocation or cancellation
of a registered EPA. Before such a decision is made, as the donor you will need to satisfy
the Court that you understand who the attorney(s) are and the powers you have given them. You will
also need to show the Court that you understand the effect that cancellation will have and why the
EPA needs to be cancelled.
An EPA registered or unregistered is also revoked if you or the
attorney(s) are made bankrupt.
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Revoking (cancelling) the power
As the donor you can revoke or cancel your LPA as long as you have the
mental capacity to do so. If there is any dispute about whether your LPA has been cancelled or
ended, the Court of Protection has the authority to make a decision.
If your attorney is your spouse or civil partner, the dissolution
or annulment of a marriage or a civil partnership will end their appointment or revoke the power,
unless you have specifically stated in your LPA that this is not to happen.
An 'LPA - Property and
Affairs' is revoked if you or the attorney(s) are made
bankrupt, but bankruptcy does not terminate an 'LPA -
Personal Welfare'.
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