Prior to the introduction of Lasting Powers of Attorney in October 2007, it was possible to prepare an Enduring Power of Attorney.
An Enduring Power of Attorney allowed you to appoint attorneys to make decisions and deal with your property and financial affairs only.
An Enduring Power of Attorney does not allow your attorneys to make decisions about your health and welfare.
Is my Enduring Power of Attorney still valid?
Provided the Enduring Power of Attorney was completed properly and signed and dated by all parties on or before 30th September 2007, it is still a valid legal document.
The Enduring Power of Attorney can be used by your attorneys, and while you have mental capacity does not need to be registered by the Office of the Public Guardian (“OPG”) like a Lasting Power of Attorney. If you have begun to or have lost mental capacity in order to deal with and make decisions regarding your property and financial affairs, then your attorneys must register the document with the OPG.
When can my Enduring Power of Attorney be used?
As the Enduring Power of Attorney does not need to be registered in order to be used, this means that your appointed attorneys can deal with your property and financial affairs on your behalf at any time.
This can be useful if you have a physical incapacity and are unable to deal with your property and financial affairs. Your attorneys will need to provide a certified copy of your Enduring Power of Attorney to the financial institutions to be able to assist you.
However, if you have started to, or have lost mental capacity, your Enduring Power of Attorney must then be registered with the OPG before your attorneys can continue to assist you with your property and financial affairs. Your attorneys should seek legal advice at this time as restrictions on actions taken by attorneys may be in place.
To register the Enduring Power of Attorney, the Attorneys will need to complete an application form and they will need to advise you and certain individuals (family members) that they are applying to register the Enduring Power of Attorney. The completed application form and court fee must then be submitted to the OPG.
The OPG can take several months to register an Enduring Power of Attorney and during this time, your attorneys can only deal with your property and financial affairs on a limited basis to include ensuring that there is no loss to you or your estate.
Should I make a Lasting Power of Attorney if I have an Enduring Power of Attorney in place?
The Enduring Power of Attorney will only allow your attorneys to make decisions about your property and financial affairs and as mentioned above, is valid immediately and does not need to be registered. A Lasting Power of Attorney is far more flexible than an Enduring Power of Attorney.
You can therefore prepare a separate Lasting Power of Attorney to deal with your health and welfare and you can revoke your Enduring Power of Attorney and prepare a Lasting Power of Attorney to deal with your property and financial affairs.
The Lasting Powers of Attorney must be registered with the OPG before they can be used and within the documents you can give guidance and instructions to your attorneys. Therefore, if your circumstances have changed or you wish to amend the attorneys that you have named in your Enduring Power of Attorney then it will be necessary to revoke your Enduring Power of Attorney and make a Lasting Power of Attorney for property and financial affairs.
Next Steps
We would suggest that if you have an Enduring Power of Attorney in place that you review the same and ensure that you are happy with the document and the attorneys that you have appointed and how they can act e.g. jointly or jointly and severally.
If you want to make a Lasting Power of Attorney or have any queries in relation to your Enduring Power of Attorney, please do not hesitate to contact a member of our Private Client team on 0808 1668860 who will be pleased to help you.
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