That Power of Attorney From 2010? It Might Not Open the Door When You Need It To

Most people treat a Power of Attorney as a one-and-done task. The document is signed, the witnesses have gone home, and the folder disappears into a drawer or a solicitor's strongroom. Ten years later, when the document is suddenly needed, families discover that the world — and the family — has moved on, while the paperwork has not.

At Alan Curtis Legal, we regularly see clients who assume that because their Power of Attorney was validly made, it will work smoothly when the day comes. That assumption is often wrong. Here is why an older document can fail you, and what to do about it.

The Document That No Longer Matches Your Life

A Power of Attorney is a snapshot of your circumstances at the moment you signed it. Life rarely stays still for a decade.

Consider the common scenarios we encounter:

• An attorney has died or lost capacity. If you appointed a sole attorney and named no replacement, the document may be effectively useless. Your loved ones could face an application to the Court of Protection at precisely the moment they can least cope with one.
• Relationships have changed. An attorney appointed before a divorce, an estrangement, or a falling-out may no longer be the right person — or may no longer be willing to act.
• Attorneys have moved abroad. An attorney living in Australia or Canada can still act, but practical difficulties multiply: certified identity documents, overseas banking, and delays that banks and utility companies are slow to accommodate.
• Your finances have become more complex. A document drafted when you had a simple current account may not suit a portfolio of rental properties, a business interest, or a self-managed pension.

An LPA does not update itself. If the people named in it are no longer the right people, the document is a legal relic rather than a safety net.

The Pre-2007 Problem: Enduring Powers of Attorney

Before October 2007, the standard instrument was the Enduring Power of Attorney (EPA). EPAs remain valid, but they are narrower in scope: they cover property and financial affairs only, and they must be registered with the Office of the Public Guardian once the donor begins to lose — or is losing — mental capacity.

That registration step is where families trip up. An EPA sitting unregistered in a drawer gives attorneys no authority at all the moment capacity becomes doubtful. Registration takes weeks, requires formal notice to relatives, and can be delayed by objections. Meanwhile, bills go unpaid and care fees mount.

Modern Lasting Powers of Attorney also offer something EPAs never could: a Health and Welfare LPA, covering decisions about medical treatment, care homes, and life-sustaining treatment. An EPA says nothing about any of this. If your only document dates from before 2007, you almost certainly have a gap.

When Banks Say No

Even a perfectly valid, registered LPA can hit a wall at the bank counter. Financial institutions have tightened their verification procedures considerably in recent years, and attorneys are routinely asked for:

• the original or an office-copy of the registered document,
• fresh proof of the attorney's identity and address, and
• in some cases, completion of the bank's own internal registration process, which can take several weeks.

Some banks impose further friction: restrictions on online access, limits on certain transactions, or requirements that both attorneys act jointly even where the document permits several. None of this makes the LPA invalid — but it can make it slow and frustrating at exactly the wrong time. An older document, with attorneys whose names the bank has never seen, invites even more scrutiny.

When Should You Review?

We suggest clients review their LPAs at least every three to five years, and immediately upon any of the following:

1. A change in marital or civil partnership status — note that divorce or dissolution automatically revokes an LPA (or removes an ex-spouse as attorney), so a divorce triggers action whether you planned for it or not.
2. The death, incapacity, or unwillingness of any attorney.
3. A significant change in your finances or health.
4. A move of the donor or attorneys overseas.
5. Any document made before 2007 — treat this as a priority review, not a routine one.

Fixing It: Amend or Replace?

Here is the point that surprises most clients: you cannot simply edit an LPA. There is no mechanism for changing an attorney's name, adding a replacement, or altering your instructions on an existing document. The options are:

• Make a new LPA. This is the standard route. A new, properly executed LPA supersedes the old one for the matters it covers, and you can then destroy or clearly mark the old document to avoid confusion.
• Revoke the old document formally. Where you are replacing an LPA, a written revocation — notified to the attorneys and the Office of the Public Guardian — prevents any doubt about which document governs.
• Register the EPA now, if it is still the right fit. In limited cases, registering an EPA while the donor has capacity is sensible belt-and-braces. But for most people, replacing it with a full set of modern LPAs is the better course.

The registration fee for an LPA is currently £82 per document, with fee remissions available for those on certain benefits or low incomes. Against the cost of a Court of Protection application — which can run into thousands of pounds and take many months — it is a modest premium.

The Mistakes That Leave Families Stranded

In our practice, the same avoidable errors appear again and again:

• No replacement attorneys, or replacements who have themselves since died.
• Attorneys appointed jointly, so that the illness or refusal of one paralyzes the whole arrangement. Jointly and severably is usually more flexible.
• Documents never registered, on the mistaken belief that registration can wait until it is needed. It can — but the delay is borne by your family, not you.
• Assuming a Will or a next-of-kin status grants authority. Neither does. A spouse or adult child has no automatic legal right to manage your affairs without an LPA or a court order.

A Short Conversation Now, or a Long One Later

Reviewing a Power of Attorney takes an hour. Untangling the consequences of a failed one — court applications, frozen accounts, family disputes — takes months and costs far more than the document ever did.

If your LPA is more than a few years old, if it names someone you would no longer choose today, or if it predates 2007 altogether, we would be glad to review it with you. A brief conversation now is the cheapest insurance your family will ever buy.

This article is general information and not a substitute for tailored legal advice. To discuss your circumstances, contact Alan Curtis Legal.