The effectiveness of an Enduring Power of Attorney (EPA)

Being able to appoint a person to make important decisions on your behalf in the event of illness or accident can give you and your loved ones peace of mind for the future. For anyone who has already made provision for this in previous years, you may have in place what’s known as an Enduring Power of Attorney (EPA). However, the EPA preceded the Lasting Power of Attorney (LPA) that was introduced under the Mental Capacity Act 2005.

Below we look at the effectiveness and scope of EPAs and how these differ to LPAs, including whether you should now replace an existing EPA with an LPA.

What is an Enduring Power of Attorney?

Prior to 1st October 2007, when the 2005 Act came into force, an individual could use an EPA to appoint someone they trusted, typically a friend or relative, to be able to deal with their general property and financial affairs if needed. This could include giving that person the authority to make bank withdrawals, collect benefits or a pension, pay bills or even sell their home. However, following the introduction of the 2005 Act, LPAs have now replaced EPAs.

Still, even though the Enduring Power of Attorney has been gradually phased out, a properly executed EPA in the prescribed form that pre-dates the 2005 Act coming into force should still be valid — although it may not give you the same flexibility and benefits as an LPA.

How does an EPA differ to an LPA?

Both an EPA and LPA are legal documents that give another person or persons (the attorneys) the authority to make certain decisions on behalf of the appointing individual (the donor) in circumstances where the donor needs help or is no longer able to make their own decisions.

However, any existing EPA will only cover decisions about a person’s property and finances. As such, the most important distinction between an EPA and an LPA is that the LPA can also include the power for your appointed attorney(s) to make important decisions about your health and welfare. This can include things like your day-to-day care, where you should live and even life-sustaining treatment. In this way, the 2005 Act increased the range of decisions that people can authorise others to make on their behalf.

Should I replace my EPA with an LPA?

Provided any existing EPA has been properly drafted and met the legal requirements upon execution, this should still be valid. As with a Lasting Power of Attorney, a valid EPA allows an attorney to make decisions even if the donor lacks capacity to manage their own affairs.

An EPA can be used before someone loses their mental capacity with the donor’s permission. It can also be used after the donor has lost the ability to make their own decisions, as long as the EPA has been registered with the Office of the Public Guardian.

However, if you want someone to make decisions about your personal welfare in the event that you lose the ability to make your own medical and care decisions in the future, you will need to make an LPA whilst you still have the capacity to do so. You will also need to substitute any existing EPA with an LPA if you're looking to replace your appointed attorney(s), or an attorney is no longer able to act on your behalf.

By planning ahead, and by securing professional help to put in place the power for your attorney(s) to manage decisions about both your financial affairs and personal welfare, you can significantly lessen the emotional strain on your loved ones if the worst should happen.

Legal disclaimer

The matters contained herein are intended to be for general information purposes only. This blog does not constitute legal advice, nor is it a complete or authoritative statement of the law in England and Wales and should not be treated as such. Whilst every effort is made to ensure that the information is correct, no warranty, express or implied, is given as to its’ accuracy, and no liability is accepted for any error or omission. Before acting on any of the information contained herein, expert legal advice should always be sought.

The legal meaning of lacking mental capacity

If you’ve been informed that a loved one no longer has mental capacity, perhaps following an unexpected illness or injury, this can be an emotionally fraught time where important decisions may need to be made about either their immediate or long-term care.

By understanding what it means when someone lacks capacity, and how this decision is reached by healthcare professionals, this can help to prepare you for how the diagnosis will affect your loved one and how their best interests can be safeguarded moving forward.

What does lacking mental capacity mean?

The Mental Capacity Act 2005 sets out the legal framework of how those working with or responsible for caring for someone who lacks capacity should act and make decisions on that person’s behalf. Under the Act, an individual lacks capacity in relation to a matter if: “at the material time s/he is unable to make a decision for himself/herself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain.”

As such, a person who lacks mental capacity is someone who does not possess the ability to make a particular decision for themselves at the time the decision needs to be taken. This reflects the fact that someone may lack capacity to make some decisions, but will have capacity to make others. For instance, they may be able to make minor decisions about everyday issues such as what to wear or eat, but unable to make more significant and complex decisions about say, financial matters or medical treatment. 

As a result of illness or injury that causes their capacity to change, a person may also lack the ability to make decisions at a certain time, yet be able to make that decision at a later time. 

How is lacking mental capacity decided?

Having identified whether an individual suffers from an illness, injury or other issue that could cause the person to lack mental capacity (the diagnostic stage), the healthcare professionals tasked with deciding if someone lacks capacity will then need to consider the individual’s ability to make certain decisions for themselves (the functional stage). 

A person will be classed as unable to make a decision for themselves if they’re unable to:

•   understand the information that's relevant to a particular decision

•   retain that information for as long as is necessary to reach a conclusion

•   use or weigh that information as part of the decision-making process, or

•   communicate their decision by talking, using sign language or by any other means.

How should someone lacking mental capacity be treated?

Given the potential impact of decisions being made on behalf of those who lack capacity to make specific decisions for themselves, the legal requirements under the 2005 Act are underpinned by the following five key principles:

•   An individual must be assumed to have capacity unless it is established otherwise

•   An individual must not be treated as unable to make a decision unless all practicable steps to help him or her to do so have been taken without success

•   An individual must not be treated as unable to make a decision merely because they’ve made an unwise decision

•   Any act done or decisions made on behalf of an individual who lacks capacity must be done in their best interests

•   Anyone taking any action or making any decisions on behalf of an individual who lacks capacity must first consider any options that are less restrictive of their rights and freedoms.

The purpose of these statutory principles is to balance a person's right to make their own decisions with their right to be protected from harm if they lack capacity. If, however, you have any concerns about decisions that have been made by healthcare professionals on behalf of a loved one, including the outcome of any mental capacity assessment or what is in that person’s best interests, you should seek expert legal advice immediately.

Legal disclaimer

The matters contained herein are intended to be for general information purposes only. This blog does not constitute legal advice, nor is it a complete or authoritative statement of the law in England and Wales and should not be treated as such. Whilst every effort is made to ensure that the information is correct, no warranty, express or implied, is given as to its’ accuracy, and no liability is accepted for any error or omission. Before acting on any of the information contained herein, expert legal advice should always be sought.