EPA, LPA query

[didds]

Apologies - this is probably a FAQ ...

My mum (82 years, in good health for her age etc) has an EPA from 2007 which has not been registered.

As we understand it, that EPA only covers financial "responsibilities/decisions", not health, so she is looking to take out an LPA for health at least.

We are receiving conflicting advice over whether her unregistered EPA needs to be registered, whether its actually worth anything, whether an LPA for finance would be "better" [yes, I know - define "better" ], whether if the LPA for health was taken out whether that would somehow "annul" the existing EPA [why would it is my question! ], should she take out 2 x LPA (health+finance] and just forget the unregistarered EPA.

This advice has come from social workers that act with the sick, typivally elderly, leaving hospitalk, age concern and "my friend whose son is a doctor" etc.

So

- is the EPA "worthwhile"
- will it be OK with a LPA for health alongside?
- should she just do 2 x LPA for health and finaince - in which case does the EPA need "annulling" ?

MY wife and I did our own LPAs online etc so the process is not daunting particularly. Mum seems convinced she needs a solicitor to handle all of this - of course its her call etc., but WADR to solicitors here unless there is some esoteric issue surrounding I don't see that she needs to pay for a solicitor to show her what boxes to put what names in etc . (that probably sounds quite rude - no offense intended!)

cheers

didds

[production100]

In my experience the EPA is accepted for both financial and health matters as long as it is registered. We have successfully used them in hospitals several times in the past. However the longer the EPA has been replaced with the LPA the fewer people there are around who recognise the old form, so sometimes it is necessary to 'educate' the people involved.

When you come to register the EPA they are very 'picky' - it has to be signed by all parties, including the person who will be acting for the person who the EPA is for, with all signatures being done and witnessed before the EPA deadline date when LPA's started being used. And with an EPA, because it is not normally registered until needed, there is always some doubt about whether the registration will go through quickly.

In view of that, for our own, we created both health and finance LPA's to replace the EPA. The forms are very clear and they are registered straight away, so there is no doubt about whether they will be accepted. They do need a lot of signatures - far more than should really be necessary - but if you follow the guide notes it is fairly simple and no solicitor is needed. The confirmation that all is OK on the form is the fact that they are registered.

If you are doing one then frankly it is no harder to do both LPA's. The same people can sign both at the same time.

You can simply shred the old EPA once the LPA's are registered.

Once you have them the LPA's can be put away until needed, so the fact that they are registered is of no consequence, and at least you have them immediately they are needed, rather than having to wait several weeks for the EPA to go through the registration process.

Hope that helps!

P100

[didds]

Thanks P100 - that's very clear.

anybody disagree with P100?

cheers

didds

[stewamax]

Registering one or both types of LPA is easy, cheap and online.
There is a mandatory delay of a month or so between submission and the registration being confirmed.
Just do it!!

[Lootman]

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. My solicitor recommended I make an EPA shortly before the deadline of them ending (2007 I think), and I am glad that he did that.

[didds]

interesting - so what is the benefit of NOT registering an EPA?

and presumably the downsides of having a REGISTERED LPA?

didds

[Lootman]

interesting - so what is the benefit of NOT registering an EPA?

1) Saves the £82 cost of registration (used to be £110 up to a couple of years ago)
2) Keeps the document private rather than in the public domain
3) Easier to change
4) Can be cancelled simply by destroying the document

and presumably the downsides of having a REGISTERED LPA?

Well, none given that there is no choice in the matter. But for an EPA, the opposite of what is listed above.

[Chrysalis]

You can't use an EPA unless it is registered....and you can't use it unless the donor has lost capacity, which is not always easy to define.

[Lootman]

You can't use an EPA unless it is registered....and you can't use it unless the donor has lost capacity, which is not always easy to define.

Unless the law has changed very recently then both of those statements are false.

A LPA has to be registered to be effective, but an EPA does not. That is one of the fundamental differences between them. And I know for a fact that an unregistered EPA works because I have used one, as noted above. I simply presented it at a bank and that bank allowed me to make withdrawals, and even gave me my own chequebook and cashcard.

Nor is the issue of capacity relevant. An EPA simply nominates someone who can act on your behalf in your absense. So for instance, suppose you go overseas for 6 months every winter. Your nominated attorney could act on your behalf using those powers even though you are fully capable. That said, its main purpose is to be able to act on behalf of someone who becomes incapable for some reason. Which is why it is a good idea to set up a LPA (these days) before you need it, because you cannot legally set one up if you are already incapable.

[didds]

right - so... EPA doesn't have to be registered to use it - the example of the bank usage above for example.

So why wold one ever register it and pay £80+ if it can use it unregistered? None of this is adding up TBH! LOL.

didds

[production100]

As I understand it the situation with registering an EPA is that If the Donor becomes unable to make financial decisions, the Enduring Power of Attorney must be registered before it can be used or, if it is already in use, before it can continue to be used.

However if the Donor is able to make financial decisions it can be used unregistered.

Presumably this is because the Donor is able to cancel or undo any actions that they do not agree with...

P100

[didds]

cheers P100!

[Lootman]

As I understand it the situation with registering an EPA is that If the Donor becomes unable to make financial decisions, the Enduring Power of Attorney must be registered before it can be used or, if it is already in use, before it can continue to be used.

However if the Donor is able to make financial decisions it can be used unregistered.

Presumably this is because the Donor is able to cancel or undo any actions that they do not agree with...

That may be the reason for such a provision but it is rather silly. The whole point of any POA is so that one person can act for another if they can't act for themselves.

As a practical matter when an attorney goes to a bank with an EPA, that bank may ask if the person for whom you are acting is incapacitated but the bank relies on your response. There is no indepedent check of that fact as far as I know, and it is hard to see how that could be checked. The bank can hardly ring up their account holder and ask them if they are incapable. (*)

Moreover an attorney is not medically qualified to make a determination of whether someone is incapable or not, and no doctor's note is required to use the EPA either. If asked the attorney could simply reply that it was their opinion that the account holder was capable.

So in reality an unregistered EPA can be used if the attorney says that it is kosher. If a challenge was made later by the bank that its account holder was incapacitated then, if needed, it could be registered then. But at least in my case that simply did not happen and it would be rare that a bank would stumble upon that fact on its own.

(*) In the case of my mother, part of her incapacity was that she thought she was capable. She was lucid and coherent, but then had spells of dysfunction and confusion. It isn't always a black or white thing.

[CryptoPlankton]

I would be wary of following advice based on one person's experience (which happens to differ from mine and, I know, many others). I'd suggest contacting the Office of the Public Guardian directly to find out what course of action is in your mother's best interests:

email: customerservice@publicguardian.gov.uk

Telephone: 0300 456 0300

[genou]

I would be wary of following advice based on one person's experience (which happens to differ from mine and, I know, many others). I'd suggest contacting the Office of the Public Guardian directly to find out what course of action is in your mother's best interests:

email: customerservice@publicguardian.gov.uk

Telephone: 0300 456 0300

They are fairly clear here : https://assets.publishing.service.gov.u ... er_EPA.pdf

to wit - you can't register unless the Donor is incapax, and you must register ( it you want to use it ) when the Donor is incapax. There is also an explanation of moving to an LPA it that is what you wish.

[Lootman]

I would be wary of following advice based on one person's experience (which happens to differ from mine and, I know, many others). I'd suggest contacting the Office of the Public Guardian directly to find out what course of action is in your mother's best interests:

email: customerservice@publicguardian.gov.uk

Telephone: 0300 456 0300

They are fairly clear here : https://assets.publishing.service.gov.u ... er_EPA.pdf

to wit - you can't register unless the Donor is incapax, and you must register (if you want to use it ) when the Donor is incapax.

But as your link states, no proof of capacity or incapacity is required:

"the OPG does not require formal evidence that the person lacks capacity in order to register the EPA."

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.

If an EPA is already in use, and then incapacity occurs, and the attorney just carries on using his powers, then nothing changes even if in theory it should.

[genou]

If an EPA is already in use, and then incapacity occurs, and the attorney just carries on using his powers, then nothing changes even if in theory it should.

Apart from the attorney lying and acting illegally, you are quite correct. Not everyone agrees with that approach.

[Lootman]

If an EPA is already in use, and then incapacity occurs, and the attorney just carries on using his powers, then nothing changes even if in theory it should.

Apart from the attorney lying and acting illegally, you are quite correct. Not everyone agrees with that approach.

Well, it would not be lying if the EPA was already in use. Merely an act of omission; a failure to advise of changed circumstances. And unless that attorney was a doctor then he/she cannot be expected to diagnose medical conditions with any accuracy.

I was not talking about the theoretical technicalities of the provision so much as what happens in practice. Most lay attorneys would, like me, not be aware of the provision to register an EPA in such a circumstance, given how natural it is to act on behalf of a loved someone who cannot.

The system and process is not set up to detect where an active unregistered EPA represents someone who is or has become incapacitated. And usually that is an indicator of the letter of the law conflicting with the spirit of the law, which in turn indicates that the provision does not really represent an important public policy imperative i.e. one that the authorities deem worthy of enforcing.

Now that said, if an attorney commits fraud by doing this, then that is absolutely wrong. But as you know, an attorney can equally commit fraud with a registered EPA or a LPA.

[genou]

If an EPA is already in use, and then incapacity occurs, and the attorney just carries on using his powers, then nothing changes even if in theory it should.

Apart from the attorney lying and acting illegally, you are quite correct. Not everyone agrees with that approach.

Well, it would not be lying if the EPA was already in use. Merely an act of omission

Clearly you and I define lying differently.

[Lootman]

Apart from the attorney lying and acting illegally, you are quite correct. Not everyone agrees with that approach.

Well, it would not be lying if the EPA was already in use. Merely an act of omission

Clearly you and I define lying differently.

More important than me disagreeing with you, the law disagrees with you. Lying is an affirmative act of telling an untruth when one knows it is untrue, with intent to do harm or personally gain.

1) In the cited situation a lay attorney would not "know" that someone is incapacitated unless they were medically qualified.

2) A failure to utter something cannot be deemed a lie. Merely, worst case, an act of omission. Silence may be many things but it is not a lie.

3) I gain nothing in the cited situation. You'd need to show harm caused and in this case you cannot.