Article Guide • Powers of Attorney
What Is an Enduring Power of Attorney and Is It Still Valid?
Enduring Powers of Attorney were replaced in 2007, but an EPA made correctly before then may still be perfectly valid today.
This guide explains what an EPA is, what it can be used for, when it needs to be registered and when it may be sensible to review the arrangements you already have.
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Powers of attorney guidance
What Is an Enduring Power of Attorney and Is It Still Valid?
If you made an Enduring Power of Attorney many years ago, it may still be perfectly valid.
Enduring Powers of Attorney were replaced by Lasting Powers of Attorney in 2007, but existing EPAs were not automatically cancelled when the law changed.
An EPA that was properly made and signed before 1 October 2007 can still be used today.
The more useful question is often not simply whether an EPA is still valid, but whether the arrangements you made all those years ago still work for you now.
An old EPA does not automatically need replacing. What matters is whether it remains valid and whether the arrangements you put in place still work for you today.
What Is an Enduring Power of Attorney?
An Enduring Power of Attorney, usually shortened to EPA, is a legal document that allows one or more people to help manage another person's property, money and financial affairs.
The person who made the EPA is called the donor.
The people they appointed are called their attorneys.
Depending on the terms of the EPA, an attorney may be able to help with things such as:
- money and bills;
- bank and building society accounts;
- property and investments; and
- pensions and benefits.
Attorneys must act in the donor's best interests and follow any restrictions contained within the EPA.
Can You Still Make an Enduring Power of Attorney?
No.
It has not been possible to make a new EPA in England and Wales since 1 October 2007.
EPAs were replaced by Lasting Powers of Attorney (LPAs) .
There are now two types of LPA:
- Property and Financial Affairs
- Health and Welfare
However, the introduction of LPAs did not mean that existing EPAs stopped working.
If an EPA was properly made and signed before 1 October 2007, it can still be used.
Old does not mean invalid
The fact that an EPA was made many years ago does not, by itself, mean that it needs to be replaced.
Is My Existing EPA Still Valid?
It may well be.
An EPA does not become invalid simply because it is old.
For an EPA to be used, it must have been made correctly. This includes the donor having been at least 18 and having had the mental capacity to make the EPA at the time.
The document should also have been signed by the donor and an appropriate witness, and signed by all of the attorneys.
There may be other issues that affect whether an EPA can still be used or how the attorneys can act, particularly where more than one attorney was appointed or the donor included restrictions in the document.
If there is any doubt, it is worth checking the actual EPA rather than assuming that it either works or does not work because of its age.
What Can an EPA Be Used For?
An EPA deals with property and financial affairs.
Depending on the terms of the document, this may include managing money, paying bills, dealing with bank accounts, managing investments or dealing with property.
An EPA does not give an attorney authority to make decisions about the donor's health and welfare.
For example, being an attorney under an EPA does not in itself give someone authority to make decisions about medical treatment or care.
This is an important limitation to understand when looking at an older EPA.
Someone can keep an existing EPA for their property and financial affairs and, provided they have the necessary mental capacity, make a separate Health and Welfare LPA if they also want to put arrangements in place for those decisions.
Does an EPA Have to Be Registered?
Not always.
While the donor still has mental capacity, they can allow their attorney to use a valid EPA to help manage their finances.
The position changes if the donor starts to lose mental capacity.
An attorney must apply to register the EPA with the Office of the Public Guardian as soon as they believe the donor is starting to lose mental capacity.
Registration involves a particular process, including notifying the donor and certain family members.
We look at this in more detail in our separate guide to when an Enduring Power of Attorney needs to be registered.
Is an EPA the Same as an LPA?
No.
The Property and Financial Affairs LPA replaced the EPA in 2007, but the two documents are not identical.
An EPA only covers property and financial affairs.
The current LPA system allows someone to make a Property and Financial Affairs LPA, a Health and Welfare LPA, or both.
There are also differences in how EPAs and LPAs are created, registered and used.
An existing EPA does not need to be replaced simply because LPAs are now available.
We look at this in more detail in our guide What Is the Difference Between an EPA and an LPA?
Can I Change an Existing EPA?
An existing EPA cannot simply be altered to change the arrangements within it.
This can become particularly important when the document was made many years ago.
The donor may now want a different person to act as attorney. An attorney may have died, become unwell or no longer be someone the donor would choose. Family or financial circumstances may also have changed.
If the donor still has the necessary mental capacity and wants different arrangements, they may need to consider cancelling the EPA and making a new Property and Financial Affairs LPA instead.
How an EPA can be cancelled depends partly on whether it has already been registered, so changes should be considered carefully rather than simply altering the existing document.
Should I Review an Old EPA?
Yes, it can be sensible to review it.
Every EPA that can still be used today was made before October 2007. Even the newest EPAs are therefore documents created many years ago.
That does not mean there is anything wrong with them.
It simply means that a lot may have changed since they were made.
A review might consider:
- who was originally appointed as attorney;
- whether those people are still willing and able to act;
- whether relationships or family circumstances have changed;
- whether there are restrictions within the EPA;
- whether financial or property arrangements have changed; and
- whether a Health and Welfare LPA would now also be appropriate.
A review does not mean replacement
The purpose of reviewing an EPA should not be to find a reason to replace it. It is simply to check that the arrangements still work for you.
If it remains valid and the arrangements still suit you, keeping it may be entirely appropriate.
The purpose is simply to make sure that a decision made many years ago still reflects what you want today.
Elephant Legal offers reviews of existing planning arrangements. You can find out more on our Wills and LPA Reviews page.
What Should I Do If I Have an EPA?
Start by finding the document and looking at what it actually says.
Check who has been appointed as attorney, whether there is more than one attorney, how they have been appointed to act and whether there are any restrictions.
Then consider what has changed since the EPA was made.
If the people you chose are still the people you trust, and the arrangements continue to work for you, the EPA may still do exactly what you need it to do.
If things have changed, it may be worth reviewing the EPA alongside the options now available through a Lasting Power of Attorney .
An old EPA does not automatically need replacing.
What matters is whether the arrangements you put in place then still work for you now.
At a glance
What should I know about an existing EPA?
New EPAs cannot be made in England and Wales
A valid EPA made before 1 October 2007 can still be used
EPAs deal with property and financial affairs
EPAs do not give authority over health and welfare decisions
Registration becomes important when the donor starts to lose mental capacity
An old EPA can be reviewed without assuming that it needs replacing
Official guidance
Further Information
The Office of the Public Guardian provides official guidance through GOV.UK on using, registering and cancelling Enduring Powers of Attorney.
If you are dealing with an existing EPA, this can be a useful source of further information alongside reviewing the particular document you have.
Read the official GOV.UK guidanceChecking Whether Your EPA Still Works for You
Having an older Enduring Power of Attorney does not automatically mean that anything needs to change.
The starting point is to understand what the document says, who has been appointed and whether those arrangements still reflect your circumstances and wishes.
If the EPA remains valid and still does what you need it to do, keeping it may be entirely appropriate.
If things have changed, reviewing the document can help you understand whether the existing EPA still works or whether a Lasting Power of Attorney may now be more suitable.
This article provides general information for people in England and Wales. It is not a substitute for advice based on your individual circumstances.
Planning ahead
Not sure whether an old EPA still reflects what you want?
Elephant Legal can help you review your existing arrangements and understand whether your EPA still works for you or whether an LPA may now be more appropriate.