Before your LPA may be active, it must be registered with the Court of Protection. You have two choices: register the Lasting Power of Attorney as soon as it is in place and signed by both you and your attorney, or leave it to be registered later.
A property and financial affairs LPA is effective the moment it is registered. This means that the attorney will be able to make judgments concerning your property and financial issues quickly, even if you are still capable of doing so.
If the LPA is for health and welfare, it only takes effect if the donor has lost mental capacity. In this article, when does a power of attorney take effect, we take a look at these issues in more depth.
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What are the different types of power of attorney?
There are various sorts of powers of attorney, and you can have more than one.
Ordinary power of attorney
As long as you have mental capacity, this applies to financial decisions. It is appropriate if you just require coverage for a short amount of time (hospitalisation or vacation), find it difficult to leave the house, or wish to have someone act on your behalf. Unlike an LPA or EPA, an OPA doesn’t need to have been registered with the Office of the Public Guardian and takes effect as soon as it is signed
Lasting power of attorney (LPA)
An LPA handles choices about your financial affairs or your health and care. It kicks in when you lose mental capacity or don’t want to make decisions for yourself. If you want to be sure you’re covered in the future, you should set up an LPA.
The rules of when an LPA comes into effect depend upon the type of LPA it is. If it is a health an welfare LPA, it only comes into effect if the donor has lost mental capacity. For a property and financial LPA, you may be able to activate it as soon as it’s registered and the LPA will state whether this is the case. If not, you will have to wait until the donor loses mental capacity.
Enduring power of attorney (EPA)
In October 2007, LPAs took over as EPAs. If you completed and signed an EPA prior to October 1, 2007, it should still be valid. An EPA oversees financial and property decisions and comes into play if you lose mental ability or want someone to act on your behalf.
When the Donor has become or is about to become mentally incapable, the EPA must be registered. Registration does not alter the powers granted to Attorneys under the EPA, but it does bring about three significant changes:
- the Attorney(s) must now answer to the OPG or the Court if anyone questions their actions;
- the Donor cannot terminate the EPA without confirmation from the Court;
- the Attorney(s) cannot disclaim (retire) unless they notify the OPG.
By registering the EPA, the Attorney assumes all responsibility for the Donor’s property and affairs. This means that the Donor will be regarded incapable of managing their own affairs. If the Donor believes they are capable of being involved in some areas, it is up to them and their Attorney(s) to decide how this should operate.
What are the main differences between an EPA and an LPA?
When a donor loses mental capacity, a Lasting Power of Attorney is no longer required to be filed with the court; instead, it is simply registrable with the Office of the Public Guardian.
You must find a witness who can swear to the fact that the person granted the authority is no longer mentally capable in order to activate a Lasting Power of Attorney.
An Enduring Power of Attorney can be awarded to multiple people, but a Lasting Power of Attorney is issued to a single person who can then designate others to make decisions.
A Lasting Power of Attorney can make decisions concerning a person’s lifestyle and medical care; on the other hand, an Enduring Power of Attorney cannot choose where a person should live.
An Enduring Power of Attorney goes into effect immediately once it is signed, whereas a Lasting Power of Attorney takes effect only after it is registered.
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Disclaimer: This article provides general information only and does not constitute legal advice on any individual circumstances.
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