Lasting Power of Attorney vs Enduring Power of Attorney

If you are reviewing your financial planning documents and encounter the terms "Lasting Power of Attorney" and "Enduring Power of Attorney", you might assume they are interchangeable. They are not. The Enduring Power of Attorney (EPA) was the previous form of incapacity-protective power of attorney in England and Wales; the Lasting Power of Attorney (LPA) replaced it in October 2007 under the Mental Capacity Act 2005. Both remain legally valid in different circumstances, and both are relevant for HNW internationally mobile families — particularly those who completed planning before the switchover.

This article explains the differences, the practical implications, and what holders of existing EPAs or LPAs should consider in 2026, particularly if their affairs extend across multiple jurisdictions.

Background: Why the EPA Was Replaced

Before October 2007, the primary vehicle for planning against incapacity in England and Wales was the Enduring Power of Attorney, introduced by the Enduring Powers of Attorney Act 1985. EPAs allowed an individual to appoint an attorney to manage their property and financial affairs, with the unique feature that the power continued (or came into force) upon the donor's loss of mental capacity.

However, EPAs had significant limitations:

• They covered only property and financial affairs — there was no EPA for health and welfare decisions.
• There were limited safeguards against attorney abuse or mismanagement.
• There was no requirement to consider the donor's best interests as a formal legal standard.
• There was no statutory mechanism for resolving disputes about the donor's capacity.

The Mental Capacity Act 2005 — which came into force in October 2007 — replaced EPAs with LPAs and introduced a more comprehensive framework for protecting individuals who lack capacity, including the statutory best interests test and the supervision role of the Office of the Public Guardian (OPG).

Enduring Powers of Attorney: What They Cover

An EPA, if valid, authorises the attorney to manage the donor's property and financial affairs. This includes:

• Operating bank and building society accounts.
• Paying bills and managing income.
• Buying and selling property on the donor's behalf.
• Managing investments.
• Dealing with HMRC and other financial matters.

An EPA does not extend to:

• Health and welfare decisions.
• Consent to medical treatment.
• Decisions about where the donor lives or who they see.

This is a critical limitation for international families: if a donor with only an EPA loses capacity abroad, the attorney may be able to manage their UK financial affairs but has no legal authority to make healthcare decisions in the country where the donor is physically located.

Lasting Powers of Attorney: An Expanded Framework

An LPA can cover two entirely separate areas:

1. Property and Financial Affairs LPA

Similar in scope to an EPA but with enhanced safeguards:

• Must be registered with the OPG before use.
• Can specify whether the attorney can act only on incapacity, or immediately.
• Includes a certificate provider (an independent person who confirms the donor understands what they are signing and is not being pressured).
• Includes notification requirements (named persons must be informed when the LPA is registered).
• The attorney is legally required to act in the donor's best interests, have regard to their past and present wishes, and consider less restrictive alternatives.

2. Health and Welfare LPA

A separate document specifically for health and welfare decisions, available only once the donor has lost capacity. Covers:

• Consent to medical treatment (including serious medical treatment).
• Refusing life-sustaining treatment (if specifically authorised in the LPA — this requires an explicit statement).
• Decisions about care home placement.
• Day-to-day welfare: what the donor eats, where they go, who visits.

The health and welfare LPA is a significant advancement over the EPA and is particularly important for internationally mobile families who may face medical decisions abroad where local institutions may otherwise follow local default rules about who can consent to treatment.

Existing EPAs: Are They Still Valid?

An EPA executed before October 2007 and not previously registered remains valid. There is no requirement to convert it to an LPA. However:

• An unregistered EPA must be registered with the OPG when the donor loses (or is beginning to lose) capacity. If the donor is already incapacitated, the attorney cannot act without registration.
• An EPA only covers financial and property affairs. If the donor has no health and welfare LPA, decisions about their medical treatment and personal care fall to the default rules (usually relatives, or the local authority in England and Wales, under the best interests framework of the Mental Capacity Act).
• If the EPA is lost, damaged, or cannot be located, it may be impossible to use without a court application.

What EPA Holders Should Do

If you have an EPA and are reviewing your planning in 2026, consider the following:

1. Locate the original EPA document and ensure it is kept securely with instructions for the attorney.
2. Consider whether to create a new LPA to supplement it. A health and welfare LPA is essential if you do not already have one. Even if you retain the EPA for financial affairs, a health and welfare LPA fills the critical gap.
3. Assess whether the EPA is adequate for your current circumstances: does it cover the right assets? Are the named attorneys still appropriate? Have family circumstances changed since it was drafted?
4. Consider whether the EPA is valid in the jurisdictions where you now hold assets: the EPA may be acceptable to UK banks and land registries, but international use (especially in civil law countries) may be more complicated.

Key Differences at a Glance

Feature	EPA	LPA (Property/Financial)	LPA (Health/Welfare)
Introduced	1985	October 2007	October 2007
New documents available	No (since Oct 2007)	Yes	Yes
Existing documents still valid	Yes	N/A	N/A
Scope	Property and finances	Property and finances	Health and welfare
Registration required	Only on/approaching incapacity	Before use	Before use
OPG supervision	Limited	Yes	Yes
Best interests test	Not formally codified	Statutory requirement	Statutory requirement
Life-sustaining treatment	Not covered	Not covered	Expressly must be included to apply
Available while donor has capacity	Yes (if donor consents)	Yes (can be activated immediately)	No — only on incapacity

Digitally Registered LPAs

From 2024, the OPG introduced the option to create and register LPAs digitally through the new "Use a Lasting Power of Attorney" online service. This accelerated the registration process and introduced a unique code system that allows attorneys to share their authority digitally with organisations such as banks. Physical documents remain valid and are still used for international purposes (where apostille and translation may be required).

Reforming the System: The Powers of Attorney Act 2023

The Powers of Attorney Act 2023 further modernised the LPA framework, primarily by enabling a fully online creation and witnessing process. The changes are being phased in; legal advice should be sought to confirm the current position on whether a fully online LPA is appropriate for your circumstances, particularly given the international recognition considerations for expats.

Scope Limitations: What Neither Document Covers

Neither an EPA nor an LPA gives the attorney authority over:

• Assets held outside England and Wales (Scottish assets require Scottish documents; overseas assets require local documents).
• Making a new will on the donor's behalf — only the Court of Protection can authorise a statutory will.
• Personal relationships — the attorney cannot prevent the donor from forming or ending personal relationships (though they can raise concerns with the OPG).
• Voting on behalf of the donor.

For internationally mobile families, this limitation on the geographic scope is the most practically important. The EPA or LPA must be supplemented by equivalent documents in each foreign jurisdiction where significant assets are held.

Practical Recommendations for 2026

1. If you have only an EPA: create a health and welfare LPA immediately. Consider also whether to supplement the EPA with an LPA for property and financial affairs for greater protection.

2. If you have both LPAs: review whether they reflect your current circumstances — correct attorneys, updated instructions, valid for international use.

3. If you have neither: prioritise creating both LPAs. Registration of a property and financial affairs LPA currently takes several weeks; planning ahead is essential.

4. For international assets: identify all jurisdictions where you hold significant assets and take legal advice in each on whether additional local documents are needed.

5. Review the attorney appointments: the person you appointed five or ten years ago may no longer be the right choice. Review appointments after any major life change — divorce, death, estrangement, or the attorney's own health changes.

How Global Investments Can Help

At Global Investments, we ensure that our clients' financial planning is comprehensive — which means not only managing investments efficiently but also ensuring that the right legal frameworks are in place to manage those investments if incapacity occurs. We work alongside specialist solicitors to ensure that LPA documents are in place and that they are valid in the jurisdictions where clients hold assets.

We help clients to:

• Identify gaps in existing EPA or LPA arrangements.
• Coordinate the creation of consistent legal authority across multiple jurisdictions.
• Ensure financial accounts and investment portfolios are properly notified of attorney arrangements.
• Review LPA and EPA provisions as part of regular estate plan reviews.

Do not wait until incapacity is a concern before addressing this. The process of creating an LPA requires mental capacity — it cannot be done retroactively. Acting early is the only way to guarantee that the right people have the authority they need when it matters most. Legal requirements change; all information in this guide reflects the position as of 2026. Please seek professional legal advice tailored to your circumstances.