Enduring, ordinary and lasting powers of attorney: the differences explained
An ordinary power of attorney stops if you lose capacity, an EPA signed before October 2007 can still be used, and an LPA is the form made today.
What are the types of power of attorney in England and Wales?
There are three main types, and what separates them is mainly what happens if the person who made the power (the donor) loses the mental capacity to make their own decisions. An ordinary power of attorney, sometimes called a general power of attorney, lets someone deal with your finances while you can still make decisions yourself. A lasting power of attorney (LPA) is designed to keep working if you lose capacity, and an enduring power of attorney (EPA) is the older document that did the same job for money and property until 1 October 2007. GOV.UK's overview of making decisions for someone sets them out side by side, together with the Court of Protection routes for someone who has lost capacity without one.
What is an ordinary power of attorney?
An ordinary power of attorney gives someone authority to deal with your financial affairs, and it is only valid while you have mental capacity, which is the main thing that separates it from the other two. Age UK's guide to ordinary powers of attorney describes it as a way of getting help temporarily, for example while you are out of the country for a while or recovering after hospital treatment, and it can be limited to particular tasks such as selling a property or running a bank account. Section 10 of the Powers of Attorney Act 1971 also sets out a short general form, which gives the attorney authority to do anything you can lawfully do through an attorney, although it does not generally extend to anything you do as a trustee or personal representative.
Nothing is registered with the Office of the Public Guardian (OPG). GOV.UK says the person making one can buy a document from a newsagent or use a solicitor, and the OPG's guidance for banks and other organisations says it does not deal with ordinary or general powers at all and that they can only be used while both the donor and the attorney have capacity. That makes an ordinary power useful for a known gap, such as a long spell abroad, rather than a plan for later life, which is why Age UK says it is generally best to make an LPA instead.
How is a lasting power of attorney different?
A lasting power of attorney keeps working after you lose capacity, and it comes in two types: one for property and financial affairs, which can be used once registered and with your permission while you still have capacity, and one for health and welfare, which can only be used when you cannot make the decision yourself. Each is made on its own form while you have capacity and must be registered with the OPG before your attorneys can use it, and our guide to setting up a lasting power of attorney covers the forms, the certificate provider and registration step by step.
The OPG charges £92 to register each LPA, and our guide to what a lasting power of attorney costs explains the reductions and exemptions. The health and welfare LPA is the only one of the three types that reaches decisions about care and medical treatment, because an EPA and an ordinary power deal with money and property alone, and refusing specific treatment in advance is a separate matter again, which our guide to living wills and advance decisions covers.
Is an enduring power of attorney still valid?
Yes, if it was made and signed before 1 October 2007. Section 66 of the Mental Capacity Act 2005 brought the Enduring Powers of Attorney Act 1985 to an end and stopped new EPAs being created, but Schedule 4 of the 2005 Act now governs EPAs already made, so one signed before that date can still be used or registered. GOV.UK's test for a legal EPA is that the donor was at least 18 and had capacity when they made it, their signature was witnessed by someone who was not an attorney, and every attorney signed it, was 18 or over and was not bankrupt.
An EPA only covers property and financial affairs, so it gives nobody authority over health or care decisions. It can be used before registration with the donor's permission while they still have capacity, and GOV.UK says the donor or attorney shows signed copies to banks and financial providers so the attorney can manage the accounts. An existing EPA cannot be amended, so a donor who wants different arrangements has to cancel it and make a property and financial affairs LPA instead, and a donor with capacity cancels an unregistered EPA by making a deed of revocation, signed in front of a witness and kept with the EPA, and telling the attorneys and any bank that knows about it. Attorneys under an EPA also have only a narrow power to make gifts, which Schedule 4 limits to seasonal presents or presents for occasions such as birthdays and marriages, given to people related to or connected with the donor, and to charities the donor gave to or might be expected to give to, in each case reasonable for the size of the estate.
How do you register an enduring power of attorney?
The attorney must register the EPA with the OPG as soon as the donor starts to lose mental capacity, which Schedule 4 frames as the point at which the attorney has reason to believe the donor is, or is becoming, mentally incapable. GOV.UK's registration guidance breaks the process into these steps:
Send form EP1PG, the notice of intention to register, to the donor, to any attorneys appointed jointly and severally who are not applying, and to at least three of the donor's relatives, chosen in a fixed order that begins with a husband, wife or civil partner and then children, parents and siblings. If you tell one person in a category, you have to tell everyone in it.
Anyone who receives the notice has 35 days from getting it to object.
Send form EP2PG to the OPG with the original EPA (or a certified copy if the original is lost) and the £92 fee, or apply for help with the fee on form LPA120.
GOV.UK says registration usually takes 8 to 10 weeks from sending the application and telling the family, and longer if anyone objects. Objections have to rest on grounds set out in Schedule 4, such as that the power is not valid, that the application is premature, that the donor was pressured or defrauded into making it, or that the attorney is unsuitable. Whilst the application is pending the attorney can only act in limited ways, such as to maintain the donor or prevent loss to their estate, and once it is registered the attorney can act under it, still involving the donor wherever possible and only making the decisions the donor cannot make.
Can someone with dementia still make a power of attorney?
It depends on the person's capacity at the time, not on the diagnosis. Section 2 of the Mental Capacity Act says a lack of capacity cannot be established merely by reference to a person's condition, and the Mental Capacity Act Code of Practice explains that capacity is about the ability to make a specific decision at the time it needs to be made, so a person may lack capacity for one decision but not for another. The Code is equally clear that someone can only make an LPA if they have the capacity to do so, and the certificate provider who signs the LPA confirms that the donor understands its significance and has not been pressured into making it.
Timing therefore matters once there has been a diagnosis. The OPG's LP12 guide encourages registering an LPA soon after it is signed, so the OPG can check it for errors whilst the donor still has capacity to put them right. If the person can no longer make an LPA and has no EPA, decisions about their finances usually need an application to the Court of Protection, which our guide to Court of Protection deputyship explains. An existing EPA avoids that for money and property, because the attorney registers it once the donor is losing capacity.
How do banks deal with a power of attorney?
The OPG publishes guidance for banks and other organisations on customers who may not be able to make their own decisions, which says a certified copy has the same legal authority as the original and that a donor who still has capacity can certify a copy of their own LPA, or of an EPA that has not been registered. For an LPA registered on or after 1 January 2016, the attorney can give the organisation an access code to view it online, but that service does not cover EPAs, so organisations look at the EPA itself or a copy, checking that an unregistered one was signed before 1 October 2007 and that the donor wants the attorney to act. A registered EPA carries an OPG validation perforation or a registration stamp from the OPG or the Court of Protection.
The same guidance is plain about the limits of informal arrangements. A third-party mandate or a nominated contact on an account only works while the customer has capacity, a DWP appointee can manage benefit payments and nothing else, and a worked example in the guidance shows that, without an LPA, EPA or deputyship order, a family member has no legal authority over the person's property and finances.
Do powers of attorney end when you die?
Yes, all three end on the donor's death, and the estate is then dealt with by the executors named in the will or, where there is no will, by administrators. GOV.UK says the attorneys under an EPA must let the OPG know, and our guide to whether power of attorney ends at death sets out what the attorney has to stop doing and what happens to the documents.
How does it work in Scotland and Northern Ireland?
Scotland has its own system under the Adults with Incapacity (Scotland) Act 2000. A continuing power of attorney covers money and property and can be used once registered, unless the document says it should only start if the granter loses capacity, whilst a welfare power of attorney can only be used once the granter has lost capacity for the decision, and most registered powers combine the two. The Office of the Public Guardian (Scotland) must register either type before it can be used, mygov.scot says a solicitor or medical practitioner must interview the granter before certifying the document, and the OPG's LP12 guide warns that an LPA made in England and Wales may not work in Scotland, so anyone with a home or affairs in both may want legal advice.
In Northern Ireland the enduring power of attorney is still the document in use, because the lasting powers in the Mental Capacity Act (Northern Ireland) 2016 are shown on legislation.gov.uk as not yet in force. nidirect says an EPA there covers financial matters only and must be registered with the High Court's Office of Care and Protection once the attorney believes you are becoming unable to manage your affairs, and the Department of Justice lists the registration fee as £189.
What to do next
If you hold an EPA, find the original and check it against GOV.UK's test for a legal EPA, so your attorney knows it can be relied on.
Decide whether the EPA still reflects what you want, bearing in mind that the only way to change the attorneys or add instructions is to cancel it and make a property and financial affairs LPA.
If you want someone to be able to make health and care decisions for you, a health and welfare LPA is the only one of these documents that does it.
Think of an ordinary power of attorney as cover for a short, defined gap, such as time abroad, because it stops working if you lose capacity.
If you live in Scotland or Northern Ireland, or have property there, check the local rules with the official bodies named above.
When someone dies, every power of attorney ends and the family or executors have to find and tell each bank, utility, insurer and subscription, which is far easier when the person left a clear record of what they held. If that work does fall to your family, Legacy Trail's free notification service can contact the private-sector companies for them.
Frequently asked questions
While the donor still has capacity and agrees, the attorney can use an unregistered EPA, for example by showing signed copies to the donor's bank. Once the donor is losing capacity it has to be registered, and from the time the application is made until registration is complete the attorney can only take limited steps, such as paying for the donor's maintenance or preventing loss to their estate.
No. An EPA made before 1 October 2007 remains valid, and GOV.UK says it can be kept and used or cancelled and replaced with a property and financial affairs LPA. An existing EPA cannot be changed, so replacing it is the only way to alter the attorneys or instructions, and because an EPA never covers health and welfare, GOV.UK notes that a health and welfare LPA can be made as well.
An ordinary power of attorney stops being valid if you lose mental capacity and is not registered anywhere, which suits short-term help such as while you are abroad. A lasting power of attorney is registered with the Office of the Public Guardian and is designed to carry on working if you lose capacity.
The Office of the Public Guardian charges £92 to register an EPA in England and Wales, the same as for an LPA, and the fee can be reduced or waived for some donors on a low income or certain benefits using form LPA120. In Northern Ireland, the Office of Care and Protection charges £189.
In England and Wales, only a health and welfare lasting power of attorney gives an attorney authority over medical treatment and care, and it can only be used once you cannot make the decision yourself. Enduring powers cover property and financial affairs only, and Age UK describes an ordinary power of attorney as covering financial decisions alone.
This article is for general information only and does not constitute legal advice. Individual circumstances vary. If you are dealing with an estate, consider taking advice from a solicitor who specialises in probate. For other guidance specific to your circumstances, speak to a funeral director, Citizens Advice, or a regulated financial adviser.