The English language is a wonderful thing. The number of words created is immense and although one word could mean virtually the same as another, there are always subtle differences in definition between them.
Of the 11 most spoken languages globally, there are over 171,000 English words in current use, containing a mammoth 615,000 definitions. Surprisingly, given its worldwide prevalence, in terms of raw numbers, English still lags behind some of its linguistic rivals. As examples, Russian consists of 200,000 words, Portuguese sits at 370,000, Dutch totals 430,000, but even that is eclipsed by Japanese and Korean at around 500,000 apiece.
But back to English. Take, for instance, the words “enduring” and “lasting”. They both describe something carrying on for a long time, although in the case of enduring the word would imply there might be an element of hardship or physical suffering along the way, as in an endurance race.
In the context of Power of Attorney, the terms “enduring” and “lasting” bear many similarities, but there are subtle differences between the two which are worth addressing, in order to avoid confusion.
Firstly, the terms Enduring Powers of Attorney (EPA) and Lasting Powers of Attorney (LPA) are both relevant and applicable specifically under the laws of England and Wales. In the Isle of Man, for instance, there are EPAs but not LPAs. Instead, General or Specific Powers of Attorney exist.
What is Power of Attorney?
Before we discuss the differences between enduring and lasting, however, what exactly is a Power of Attorney? Essentially, this is a document in which one person (the Donor) appoints another person (the Attorney) to act for him or her. There are many reasons someone might decide to use a Power of Attorney. For example, if you are going to be out of the country for a lengthy period of time, you might want someone to do your banking whilst you are absent. If you are approaching old age, it might be more practical to give a Power of Attorney to a person you trust so that he or she can manage your property or investments for you.
The Power of Attorney doesn’t have to be a lawyer – they can be a close relative as long as they are over 18 and of sound mind– but someone you would implicitly trust to look after your best interests. They mustn’t be an undischarged bankrupt or the owner, operator or employee of a nursing home or extended care facility in which the donor is living.
Enduring Power of Attorney
So what is an EPA? Firstly, it does have much in common with a lasting one and the two both provide similar legal protections.
Essentially, an EPA allows you to appoint someone to manage your personal property or financial affairs – such as bank accounts, pension, benefits, household bills and investments. The necessity for this might arise as a result of the person losing their mental capacity. The important distinction is that since October 2007, they have been replaced with lasting powers of attorney. Nevertheless, if the EPA was made and signed before October 2007, it can still be used.
Because of the cut-off date, EPAs are less common and anyone creating one today will be channeled down the LPA route.
It is worth pointing out that whilst an EPA can still be implemented at any time, in the event of it being brought into effect due to the donor’s inability to make decisions, then the EPA will need to have been registered with the Office of the Public Guardian or in the Isle of Man at the Courts of Justice.
Lasting Power of Attorney
Essentially, an LPA also enables the donor, who must be over the age of 18 and of sound mind, to appoint another a person or people to make decisions on their behalf, such as when they become medically or mentally incapacitated.
LPAs fall into two categories:
• Property and financial affairs
• Health and personal welfare
The differences, or separations, between the two sections are to provide the donor with demarcation between how they wish certain powers to be distributed, especially if they wouldn’t want only one designated attorney to have power over all their affairs. It also provides the opportunity to select different attorneys for specific areas of responsibility. For instance, one attorney might be mustard when it comes to managing a property portfolio, but lacking in empathy on matters relating to personal or health related matters.
So, in essence, an LPA for Property and Affairs would allow the Attorney to handle the buying or selling of your home, to managing other investments and even carry on the running of a business.
An LPA for Personal Welfare, meanwhile, would permit the Attorney (as mentioned, this could be somebody completely separate from the Attorney handling property and investments) to make decisions on your behalf such as consenting to certain medical treatment or making decisions about where you live, such as moving you to residential or nursing care.
Another distinction between the two types of LPA, is that a Property and Affairs Attorney can make decisions on your behalf whether you are capable or not. Your Personal Welfare Attorney, however, can only make decisions on your behalf when you are incapable of making them yourself. Also, all LPAs can only take effect after being registered with the Office of the Public Guardian.
In the Isle of Man, the equivalent to an LPA would be a general power of attorney, allowing the attorney authority to deal with the donor’s financial affairs and property. Alternatively, a specific power could be authorised to handle specified areas or tasks, as decreed by the donor.
The Difference between an EPA and an LPA
Fundamentally, the only real difference is when they can be used. An EPA can be implemented straight away, after it has been signed by all parties. Although, it must still be registered with the Office of the Public Guardian if the donor is losing, or has completely lost the ability to make independent decisions.
In the case of LPAs, however, they must always be registered with the Office of the Public Guardian before they can be actioned.
The subtle nuances in language are endless. In this instance, we hope to have made the clear distinction in meaning between enduring power of attorney and lasting power of attorney. Of those 615000 recorded definitions in the English language, that leaves only 614998 to go!