On 1 October, the law relating to Powers of Attorney is to change and it will no longer be possible to make an Enduring Power of Attorney.

The current law

Under the current system, an Enduring Power of Attorney (“EPA”) is a simple and cost effective way to ensure that your financial and legal affairs are catered for in the event that gradual mental decline or a sudden accident or illness leaves you unable to cope.

The EPA allows you to choose a trusted person or persons (known as attorney(s)) for example a close relative or a professional advisor, to act on your behalf in relation to your financial and property matters, should you become unable to handle them yourself. We would advise everyone over the age of 18 to make an EPA if they have someone in whom they trust.

It is important to remember that your spouse or other members of the family cannot step into handle personal legal or financial matters without you having legally appointed them to do so and should you become incapable of handling your own affairs, for whatever reason either through illness or accident, an expensive and complex legal procedure is required and the Court would ultimately decide on those who should be appointed as your representatives.

Another feature of the EPA is that you decide at the outset whether the EPA is only to be used if you lose mental capacity or if it can be used before then. Should you require a stay in hospital, for example, you could authorise your attorney(s) to act on your behalf to pay household bills and then once you return home you could take full charge again.

EPAs made now will remain effective following the implementation of the change in the law.

The new system

From October it will no longer be possible to make an EPA and a new Lasting Power of Attorney (LPA) will be introduced.

The new LPA will give authority over property and financial affairs, but in addition the attorney will be able to make health and welfare decisions if you lose the capacity to do this for yourself.

It will be a legal requirement for the LPA to be registered with the Office of the Public Guardian before it can be used, even if the person making the LPA is mentally capable. In addition to the payment of the fees associated with this required registration it is likely that the cost of preparing the document and completing the LPA will be more expensive than is currently the case with the EPA.

MacLachlan are advising clients to act quickly and to consider whether they should be making an EPA now and saving costs and expense later on.