There seems to be a fair amount of confusion - both legal and moral! - so to deal firstly with didds's specific queries:
didds wrote:- is the EPA "worthwhile"
Most definitely. EPA's actually worked very well, and I made dozens of them for people. The best thing about them was their simplicity. Many of the people making them (and this applies equally to LPA's) are already beginning to lose their faculties, and can have difficulty understanding complicated / long-winded documents.
The EPA was just 4 pages of large type, and they could be made in half an hour and used immediately, instead of having to wait the several weeks that an LPA takes to register. They were a lot quicker and a lot cheaper from the client's point of view.
By contrast the LPA's are absurdly over-complicated, and are quite daunting for many people. They may be easy enough for an educated, computer-literate person to deal with, but they can be a nightmare for people outside that category. The stringent requirements for their execution also catch out a lot of people, meaning they have to be returned for correction, resulting in further delay.
And I'm not at all sure that the main object of LPA's - reducing fraud - is much less likely with an LPA as against an EPA. There are no checks made on the certificate providers, and the mere fact that it's registered doesn't really provide many practical safeguards, as their use isn't monitored in any way.
So my advice to people with an EPA is hang onto it, and don't bother replacing it with an LPA unless, for example, they want to replace the attorneys or impose some specific rules / guidance on them.
- will it be OK with a LPA for health alongside?
Yes - see above - and save yourself £82 into the bargain!
- should she just do 2 x LPA for health and finance - in which case does the EPA need "annulling" ?
No - again, see above.
With regard to the question of registration it's really quite simple. An EPA
can't be registered unless the donor has lost capacity, but it
must be registered as soon as that happens if it's to remain effective. Although there's no need to provide medical evidence when applying for registration all the clients that I've ever dealt with have obtained a medical opinion before doing so.
Lootman wrote:I acted on behalf of my mother for a few years using an EPA which was not registered. I had no problems at all using it.
And I have my own unregistered EPA which my children could use if needed.
I've never seen the point of registering it, and in fact that is one benefit of EPAs over LPAs, since the latter must be registered.
The point of registering the EPA is that it's a legal requirement to do so once the donor has lost capacity, and it's not up to you to decide whether or not to register it. If you don't register it then any transaction carried out under the EPA thereafter is legally void.
It is entirely up to the attorney to declare any incapacity. It's not a formal medical statement of opinion. If they do declare it then their word is taken. If they do not declare it, their word is also taken.
Yes, it is up to the attorney to declare incapacity (though others can also do so) but you seem to be implying that they have free rein to decide whether or not to do so. This is emphatically
not the case. The mere fact that an attorney may get away with not registering the EPA does not alter the fact that they are breaking their legal obligation to do so.
So in reality an unregistered EPA can be used if the attorney says that it is kosher.
Yes - in the same way that you can drive a car perfectly well without insurance or install a gas boiler without any qualifications. Getting away with breaking the law is rather different from not breaking the law in the first place.
I realise from previous posts that you take the view that you will comply with the law if it coincides with your view of what the law should be. But advising others to follow your example by acting illegally is perhaps not a good idea on a board where people are specifically seeking guidance on legal issues.