Tags – Difference Between Enduring and Lasting Power of Attorney
Most of us will go through life without thinking twice about what could happen tomorrow, next week, next month or next year.
So, a power of attorney is not something people have in the front of their minds.
But, it should be.
Essentially, everyone should have a power of attorney in place just in case something unexpected happens.
Let’s take a closer look at what an Enduring Power of Attorney is, what a Lasting Power of Attorney is and the difference between them.
What is an Enduring Power of Attorney?
Before 2007, if you were looking to appoint someone to handle your affairs, you would make an Enduring Power of Attorney.
Simply, this person would have the power to act on your behalf regarding any property and financial affairs.
From 1st October 2007, the Lasting Power of Attorney replaced the Enduring Power of Attorney, but any that were signed before this date are still valid today, which is why they remain important.
Briefly speaking, an Enduring Power of Attorney was a right conferred by a mentally capable person that was registered in case they become incapable.
And, this could be appointed to more than one person to handle different aspects of the donor’s financial affairs.
Then the process was fairly straightforward: you and your chosen attorney would sign a short form, and if you were to lose mental capacity, your attorney would then register the Enduring Power of Attorney.
To put it differently, your attorney could still act on your behalf before registration whilst you had mental capacity, and would only be registered once you were no longer capable.
However, an Enduring Power of Attorney only extended to dealing with a person’s finances and not health and wellbeing.
What is a Lasting Power of Attorney?
From October 2007, Enduring Powers of Attorney were replaced by Lasting Powers of Attorney, which is an important, legal document that everyone should complete – even if you’re mentally capable.
Unlike an Enduring Power of Attorney, there are two types of Lasting Powers of Attorney that offer greater flexibility in their application and use:
- Health and Welfare: can only be used after you’ve lost the ability to make your own decisions, such as those with dementia
- Property and Finance: can be used before or after you lose mental capacity
You can read more about the types of Lasting Powers of Attorney here.
Although you may not think about the future, or plan for life with a mental problem, planning makes things a whole lot easier when certain conditions progress.
Consequently, if you don’t make a Lasting Power of Attorney and you cannot make decisions for yourself, there could come a time where no one can legally make those for you.
So, when it comes to things such as paying household bills or making decisions about your care in the future, this can become very difficult.
Should this be the case, someone may need to apply to the Court of Protection to become your deputy; check our previous post for more information about the role of a deputy.
Here is a quick overview of how the two systems differ:
- A Lasting Power of Attorney does not have to apply to the court when the donor loses mental capacity; it is now only registrable with the Office of the Public Guardian
- To active a Lasting Power of Attorney, you must seek a witness to support the claim that the person conferring their power is no longer mentally capable
- An Enduring Power of Attorney could have been awarded to several people, whereas a Lasting Power of Attorney is one person who can then nominate others to make different decisions
- A Lasting Power of Attorney can make decisions regarding the person’s lifestyle arrangements and medical care; an Enduring Power of Attorney cannot decide where a person should live, for example
- An Enduring Power of Attorney became valid as soon as it was signed whereas a Lasting Power of Attorney becomes valid only once registered
Here is a quick overview of how the two systems are similar:
- They both give power to deal with a person’s financial affairs once they lose mental capacity, and with this power, an arrangement should not be created without a lawyer present
- Anyone holding a Power of Attorney can seek advice from the Office of the Public Guardian
- If anyone is found to not be acting in the best interest of the donor, or if there are any allegations of abuse, the Office of the Public Guardian will put them under investigation
All in all, Lasting Powers of Attorney are more actionable: you can register it immediately and offer greater protection as they can make decisions before and after you lose mental capacity.
For those with an Enduring Power of Attorney, you may be more restricted; this can only be registered once mental health begins to deteriorate.
Lastly, should a person still have mental capacity, an Enduring Power of Attorney can be replaced with a Lasting Power of Attorney or make an additional one for decisions about personal welfare.
For more information, please get in touch today.
In the meantime, take a look at our Court of Protection Solicitor services.
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