If a parent or relative made an enduring power of attorney many years ago, you may be wondering whether it still works now that lasting powers of attorney have taken over. The good news is that an enduring power of attorney made before the rules changed does not simply expire. It remains valid, but it works differently from a modern lasting power of attorney and has some significant gaps that are worth understanding now, before they matter.
Plain-English guide written by Simon Jenkins — covering every stage of the probate process.
What is an enduring power of attorney?
An enduring power of attorney, usually shortened to EPA, is a legal document that allowed someone, the donor, to appoint one or more attorneys to manage their property and financial affairs. EPAs were replaced by lasting powers of attorney on 1 October 2007, and no new EPAs can be made today. However, any EPA signed before that date remains legally valid, whether or not it was ever registered.
Why EPAs only ever cover money, never health decisions
The most important gap in an EPA is that it only ever covers property and financial affairs. There was never an EPA equivalent for health and welfare decisions, because that type of power did not exist until lasting powers of attorney were introduced in 2007. This means someone relying solely on an old EPA has no formal arrangement in place for decisions about their care, medical treatment or where they live, even though their finances are covered.
When does an EPA need to be registered?
An EPA can be used while the donor still has mental capacity without being registered, which is different from a lasting power of attorney, which must always be registered before it can be used at all. Once the donor starts to lose mental capacity, the attorney is legally required to register the EPA with the Office of the Public Guardian before continuing to use it. Before registering, the attorney must notify the donor and at least three of their close relatives, in a specified order of priority, giving them the opportunity to object if they have concerns.
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What does registering an EPA cost?
Registering an EPA with the Office of the Public Guardian costs £92, the same fee that currently applies to registering a lasting power of attorney, unless the donor qualifies for a reduction or exemption based on low income or certain means-tested benefits.
Should an old EPA be replaced with a lasting power of attorney?
If the donor still has mental capacity, they can choose to either keep their existing EPA as it stands, or replace it with a new property and financial affairs lasting power of attorney. In almost every case it is worth at least making a health and welfare lasting power of attorney alongside an existing EPA, since the EPA will never cover health and welfare decisions no matter how it is used. Our guide to what happens if someone loses capacity without an LPA explains the real-world consequences of leaving that gap unfilled.
What happens if there is no EPA or LPA at all?
Without a valid EPA or LPA in place, nobody automatically has the legal authority to manage another adult’s finances or make welfare decisions on their behalf, even a spouse or adult child. Family members usually have to apply to the Court of Protection for a deputyship order instead, which is slower, more expensive, and subject to ongoing court supervision in a way that a power of attorney is not.
How Curtis Legal can help
Whether you are dealing with an old EPA that now needs registering, or thinking about putting a lasting power of attorney in place for the first time, our team can guide you through the right next step. Read more on our main probate pages, or get in touch for tailored advice.
Frequently Asked Questions
Is an enduring power of attorney made before 2007 still valid?
Yes. Any EPA signed before 1 October 2007 remains legally valid, whether or not it has been registered, even though no new EPAs can be made today.
Does an EPA cover health and welfare decisions?
No. An EPA only ever covers property and financial affairs. There has never been an EPA equivalent for health and welfare decisions, which only became possible with lasting powers of attorney in 2007.
When must an EPA be registered?
An EPA can be used unregistered while the donor still has mental capacity, but it must be registered with the Office of the Public Guardian as soon as the donor starts to lose capacity.
How much does it cost to register an EPA?
It costs £92 to register an EPA with the Office of the Public Guardian, the same fee that applies to registering a lasting power of attorney, unless a reduction or exemption applies.
Should I replace an old EPA with a lasting power of attorney?
You can keep a valid EPA as it is, but because it never covers health and welfare decisions, it is usually worth making a separate health and welfare lasting power of attorney alongside it.
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If you have an old EPA that needs registering, or want advice on lasting powers of attorney, call us on 0800 214 216 for a same-day callback.
Written by Simon Jenkins, solicitor and director of Curtis Legal Limited (Simon Jenkins SRA 167489; Curtis Legal Limited SRA 450129).
