A well-structured Power of Attorney ensures that your affairs are managed effectively should you lose capacity. However, many individuals set up these documents and assume they will remain suitable indefinitely. With evolving legal standards, changes in personal circumstances, and shifting responsibilities for attorneys, reviewing your Enduring and Lasting Powers of Attorney is essential.
Enduring Powers of Attorney vs. Lasting Powers of Attorney
Enduring Powers of Attorney (EPA) were replaced by Lasting Powers of Attorney (LPA) in 2007. While EPAs remain valid if correctly executed before that date, they only apply to financial matters and require registration upon loss of capacity. LPAs, in contrast, must be registered with the Office of the Public Guardian before they can be used and provide greater flexibility in managing both financial and health-related decisions.
If you still rely on an EPA, reviewing its provisions is crucial, particularly as LPAs offer a wider scope of control, including healthcare decisions that EPAs cannot cover.
Why reviewing your Enduring and Lasting Powers of Attorney matters:
- Changes in Attorney Availability
Attorneys may move abroad, become unwell, or lose capacity themselves. If your chosen attorney is no longer able to act, your Power of Attorney could become ineffective at a critical time. Updating your document ensures your affairs remain in reliable hands.
- Relationship Changes
Over time, relationships evolve. If your attorney is a spouse, a separation or divorce may make them unsuitable. Similarly, friendships and family dynamics can shift, making previous choices outdated or even problematic.
- Death of an Attorney
If your appointed attorney passes away, your Power of Attorney may be unusable unless a replacement was included in your original document and any joint appointments give ‘joint and several’ power. Reviewing your arrangements allows you to update attorney selections and ensure continuity.
- New Legal Guidance and Best Practices
Legal frameworks and recommended best practices evolve. For example, recent emphasis on health and welfare LPAs has encouraged individuals to formalise their wishes regarding medical treatment and care decisions. Updating your Power of Attorney ensures compliance with current legal standards.
- Business Interests and Financial Changes
If you have significant business assets or investments, changes in ownership structures may necessitate updating financial LPAs. Ensuring the right person manages your finances can protect both personal and business affairs.
- Life-Sustaining Treatment Preferences
Many people initially overlook medical decisions when drafting LPAs. However, specifying clear instructions regarding resuscitation, end-of-life care, and treatment preferences can relieve loved ones of difficult decisions later on.
- New Family Arrangements
Births, adoptions, or blended families may alter your preferences for attorneys. If younger relatives become responsible members of the family, you may wish to appoint them instead of older individuals who may no longer be in the best position to act.
- Safeguarding Against Fraud or Mismanagement
If concerns arise regarding an existing attorney’s ability to act fairly, whether due to personal financial struggles or mismanagement, you can update your document to appoint someone more suitable.
- International Relocation
If you move abroad, reviewing your LPAs to reflect local legal requirements is essential. Cross-border estate planning often requires attorneys who understand local laws to avoid complications with financial access and medical decision-making.
- Improved Clarity in Your Wishes
As time passes, your preferences may become more defined. Whether specifying detailed instructions on care arrangements or financial decision-making, updating LPAs ensures attorneys act in alignment with your latest wishes.
Can Your Attorneys Still Act for You?
Circumstances change over time, and the attorneys appointed when first drafting a Power of Attorney may no longer be able or willing to act. Attorneys may become unwell, relocate, or face personal challenges that prevent them from fulfilling their role effectively. Additionally, relationships can shift, meaning the individuals chosen may no longer be the best fit for carrying out your wishes.
If an attorney is no longer suitable, it is essential to update your arrangements rather than risk a situation where no one is available to act on your behalf when needed. Reviewing your Power of Attorney allows you to ensure your chosen representatives remain appropriate, capable, and willing to serve your best interests.
Take Action Now
Ensuring your Powers of Attorney align with current legal standards and personal circumstances can provide peace of mind and prevent complications. If you have an EPA, consider replacing it with an LPA for both financial and healthcare matters. If you already have LPAs, review your choice of attorneys and any specific instructions to ensure they reflect your wishes today, not just when they were originally drafted.
Amanda Voakes or a member of the team can guide you through the process of updating or creating a new LPA, ensuring your affairs are safeguarded. Regular reviews help avoid legal pitfalls and ensure that the people you trust remain the right ones to act when you need them most.
How can we help?
Amanda Voakes is a Partner in our expert Wills and Probate team, advising on Inheritance Tax planning, Wills, administration of estates, grants of Probate, grants of Letters of Administration, Powers of Attorney, administration of affairs, and residential care fee planning/protection of assets.
Amanda is an accredited member of The Association of Lifetime Lawyers (formerly known as Solicitors for the Elderly or SFE) which is a membership body for legal professionals. Members of the group are the most qualified lawyers in the country when it comes to supporting older people and those in vulnerable circumstances who may need extra help and support. Lifetime Lawyers receive expert training and best practice guidance to offer the very best advice.
Amanda Voakes or a member of the team can guide you through the process of updating or creating a new LPA, ensuring your affairs are safeguarded. Regular reviews help avoid legal pitfalls and ensure that the people you trust remain the right ones to act when you need them most. If you require any legal advice on the above subjects, please contact Amanda or another member of the team in Derby, Leicester or Nottingham on 0800 024 1976 or via our online enquiry form.
Contact us