Q. A few years ago, my wife and I established enduring powers of attorney with our son and daughter serving as our attorneys. I’ve learned that there’s a new system with updated registration requirements, but I assumed that our previous powers would still be valid. Is that the case, or do we need to create new powers under this system? David, North Yorkshire

As a legal professional, I often receive inquiries regarding powers of attorney, and it’s a vital topic. It’s crucial to ensure arrangements are in place that allow a trusted individual to manage your affairs should you become incapable of doing so.

Enduring Powers of Attorney (EPAs) were the former documentation used to address mental incapacity. They were supplanted by Lasting Powers of Attorney (LPAs) in 2007. The short answer is that if your EPAs were correctly executed before October 1, 2007, they should remain valid. Thus, you are ahead of many who have no arrangements in place to manage their affairs in the event of losing mental capacity.

Regarding whether you should transition to the new LPAs, my general recommendation is to do so.

The primary reason is that it allows for a reassessment of your current arrangements. The powers granted to your attorneys under your EPAs, which are now over 17 years old, are quite broad, necessitating a regular review.

Relationships and circumstances evolve, and what was once a prudent decision may not hold as much merit today. Given that you’ve appointed your children, and hopefully family relations are still positive, it seems your choice of attorneys is still appropriate.

Nonetheless, consider whether you and your wife might want to include each other as attorneys alongside your children, or as primary attorneys, to remain involved in decisions regarding each other as needed. LPAs also offer distinct advantages.

Enhanced Flexibility

LPAs tend to provide greater control to you (the “donor”). Mental capacity loss is rarely a sudden event; it typically occurs gradually.

In contrast to EPAs, LPAs are structured so that attorneys can collaborate with you in your decision-making process and can assume full control only if you experience a total loss of capacity (for instance, if you are in a coma).

LPAs also enable the appointment of replacement attorneys who can take over if your primary attorneys are unable, ensuring your plans have a longer lifespan. Additionally, you can incorporate specific instructions and guidance for your attorneys within the document itself.

Registration Timing

LPAs can be registered immediately with the Office of the Public Guardian, whereas EPAs are registered only when you are declared incapable of managing your affairs. This registration process is often slow, taking two to three months.

Consequently, when an EPA is most needed, it may not be available, leading to potential issues for the attorneys. In contrast, if an LPA is registered when created, it is ready for use right when needed.

Health and Welfare Considerations

EPAs only pertain to decisions about your property and finances, and do not cover health and welfare decisions, such as medical treatments, living arrangements, or life-sustaining treatment decisions.

LPAs include provisions for health and welfare decisions, with a specific type designated for this purpose, which can be established alongside the LPA for property and financial matters.

Lastly, due to the broad powers conferred by both LPAs and EPAs, it’s essential to carefully deliberate before agreeing to them and to conduct a review at least every five years or when significant changes occur in your or your attorneys’ circumstances, such as death or divorce.

Preferably, these documents should be created after a thorough discussion with a solicitor or another experienced professional familiar with powers of attorney.

Tim Snaith is a partner at the London law firm Winckworth Sherwood, specializing in trusts, estates, and succession planning.