Difference Between Lasting and Enduring Power of Attorney,?? Explained Clearly and In-Depth

Introduction: Understanding the Core of Power of Attorney

When it comes to planning for the future, especially for decisions related to health and finances, many people consider assigning someone they trust as a legal decision-maker through a Power of Attorney (POA). Two common types that often create confusion are the lasting power of attorney (LPA) and the enduring power of attorney (EPA). While both legal tools allow someone else to make decisions on your behalf, the difference between lasting and enduring power of attorney lies in their structure, legal status, areas of use, and time of implementation.

In this detailed article, we will explore the difference between lasting and enduring power of attorney,?? focusing on their definitions, legal distinctions, registration procedures, and practical applications. Understanding these distinctions is crucial for anyone involved in estate planning or caregiving responsibilities.

What Is a Lasting Power of Attorney (LPA)?

A Lasting Power of Attorney is a legal document introduced in England and Wales under the Mental Capacity Act 2005. It allows an individual (known as the donor) to appoint one or more persons (known as attorneys) to make decisions on their behalf if they lose mental capacity in the future.

There are two main types of LPA:

1. LPA for Property and Financial Affairs – covers matters such as managing bank accounts, paying bills, or selling property.
2. LPA for Health and Welfare – covers decisions about medical care, daily routines, or life-sustaining treatment, but only when the person lacks mental capacity.

The LPA must be registered with the Office of the Public Guardian (OPG) before it can be used, even if the donor still has mental capacity.

What Is an Enduring Power of Attorney (EPA)?

An Enduring Power of Attorney is a predecessor of the LPA and was primarily concerned with financial matters only. EPAs were used in England and Wales before October 1, 2007, after which LPAs officially replaced them. However, EPAs created before this date can still be valid and used today.

EPAs allow the appointed attorney to begin acting while the donor still has mental capacity, but they must be registered with the OPG if the donor starts losing capacity. Unlike LPAs, there is no health and welfare equivalent for EPAs.

Key Difference Between Lasting and Enduring Power of Attorney

Now that we understand what each power of attorney entails, let’s break down the key differences between lasting and enduring power of attorney in a structured way:

1. Legal Introduction and Validity Period

• LPA: Introduced in 2007 under the Mental Capacity Act 2005 and is the current standard.
• EPA: Created before October 2007 and cannot be made anymore, though existing ones can still be used.

🡪 Main Difference: LPAs are modern and still available; EPAs are older and can no longer be created.

2. Scope of Authority

• LPA: Covers both property and financial affairs and health and welfare (two separate documents).
• EPA: Covers only property and financial affairs.

🡪 Main Difference: LPAs offer broader decision-making powers, including health-related decisions.

3. Registration Requirements

• LPA: Must be registered with the Office of the Public Guardian before it can be used.
• EPA: Can be used immediately while the donor has mental capacity, but must be registered only when the donor is losing or has lost capacity.

🡪 Main Difference: LPAs need registration from the outset; EPAs can start informally but require registration upon incapacity.

4. Mental Capacity Consideration

• LPA: Created with the assumption that it may only be needed when the donor loses capacity, especially for health and welfare decisions.
• EPA: Can be used while the donor still has capacity and continues when capacity is lost (only financial matters).

🡪 Main Difference: LPAs are proactive tools; EPAs are reactive in nature and limited.

5. Safeguards and Oversight

• LPA: Includes more formal safeguards such as a certificate provider, who confirms the donor understands the document and isn’t under pressure.
• EPA: Has fewer formal requirements, and oversight was relatively limited.

🡪 Main Difference: LPAs offer enhanced protection against abuse or coercion.

6. Geographical Usage

While both LPAs and EPAs are used in England and Wales, different rules may apply in Scotland and Northern Ireland, where they use Continuing Powers of Attorney and Combined Powers of Attorney, respectively.

🡪 Main Difference: LPAs are more adaptable to modern legal standards across UK jurisdictions.

Why Understanding This Difference Matters

Understanding the difference between lasting and enduring power of attorney?? isn’t just a legal matter; it’s about preparing responsibly for the future. Choosing the right POA ensures your health, money, and personal decisions are made by someone you trust when you’re unable to do so.

Many families mistakenly assume that just having a power of attorney is enough. However, if someone has an EPA that doesn’t include health-related authority, critical decisions like medical treatments or care home placements may fall outside the attorney’s powers. This is where LPAs offer a comprehensive solution.

Should You Replace an EPA with an LPA?

If you or a loved one has an existing EPA, it might be wise to consider whether creating an LPA for health and welfare would fill in the missing legal authority, especially if the donor still has mental capacity. You can’t retroactively change an EPA, but you can supplement it with an LPA for greater legal clarity and control.

Common Misconceptions

“I have an EPA, so I don’t need an LPA.”

That might be true for financial decisions, but it’s false if health decisions are a concern.

“EPAs and LPAs are the same thing.”

They serve similar functions but differ greatly in legal standing, scope, and use.

“I can make an EPA now instead of an LPA to avoid registration delays.”

You cannot create a new EPA anymore; LPAs are the only valid power of attorney documents being accepted.

FAQs on the Difference Between Lasting and Enduring Power of Attorney

Q1: Can I still use an EPA today?
Yes, if it was created before October 1, 2007, and properly signed, it remains legally valid for property and financial matters.

Q2: Do I need both types of LPA?
You can choose one or both. Having both ensures your attorney can make decisions regarding your finances and health if needed.

Q3: Can an LPA be challenged or revoked?
Yes. An LPA can be revoked by the donor if they still have capacity, or challenged by others if they suspect abuse.

Q4: Is one better than the other?
In most cases, LPA is more comprehensive and legally protective, especially with the inclusion of health decisions.

Q5: What happens if I don’t have either in place?
If you lose capacity without any power of attorney, your family may need to apply to the Court of Protection for a deputyship, which is a longer and more expensive process.

Final Thoughts: Choosing the Right Path Forward

The difference between lasting and enduring power of attorney is both legally and practically significant. While both were designed to protect individuals during periods of incapacity, LPAs offer a more secure, comprehensive, and up-to-date method of appointing someone to manage your affairs. With today’s evolving healthcare and financial systems, making an informed choice between these documents—or updating older arrangements—is one of the most important steps in life planning.