What Are Enduring Powers Of Attorney?

An Enduring Powers of Attorney (EPA) appoints an individual (attorney) to deal with the financial and property affairs of another (donor). They were introduced by the Enduring Powers of Attorney Act 1985.

EPAs can be used prior to being registered, whilst the donor retains capacity.

The EPA must be registered by the attorney with the Office of Public Guardian (OPG) when they believe the donor is unable to deal with their own affairs. This tends to be when capacity is lost, but no evidence is required to prove this. If the attorneys act ‘jointly and severally’ then any one attorney can apply. On the other hand, if the attorneys are appointed to act ‘jointly’ then they must all agree to register the EPA.

Before registering an EPA, a notice (known as the EP1PG) must be sent to the donor, any relatives, and the other attorneys appointed. Not all of the donor’s relatives need to be notified, however there is an order in which must be followed and at least three need to be informed:-

1. spouse/civil partner;
2. children;
3. parents;
4. siblings; etc.

Those notified must be over the age of 18 and have mental capacity. You must ensure that everyone in that category is notified, even if that means more than three people are notified, e.g. if the donor has four siblings, then all four must be notified.

Once the notice has been served, and if no-one objects, a EP2PG can be filed, applying to register to EPA. This should be sent with the original EPA and registration fee, which is currently £82, to the OPG. It can then take up to 10 weeks to register.

What is the role of an attorney?

An attorney, first and foremost, must always act in the best interests of the donor by considering their needs and wishes. At no point must the attorney take advantage and make a gain for themselves.

An attorney must keep the affairs of the donor separate from their own and in turn keep accurate accounts of any expenses. The affairs must remain in the donor’s name.

The EPA will specifically set out directions the attorney must follow. The attorney may also have the power to sell the donor’s property if they think necessary. However, the attorney must remember they cannot decide where the donor lives.

Can I cancel my EPA?

The simple answer is ‘yes’ if you have mental capacity and it has not been registered.

If the EPA has been registered, the court must confirm revocation for it to be cancelled. To cancel, the donor must sign a Deed of Revocation and it is suggested that you may wish to seek legal advice for this.

Can I still make an EPA?

Since the 1^st October 2007, the Mental Capacity Act 2005 replaced EPAs with Lasting Powers of Attorney (LPAs). There are two types of LPAs which aim to give the donors more protection whilst also providing attorneys with more guidance. LPAs introduced a new type of decision making for attorneys, to include health and welfare decisions.

Although new EPAs cannot be made, those that have been validly executed before that date can continue to be used, whether or not they have been registered. However, donors may want to consider applying for a Health and Welfare LPA, as there is an overlap between an EPA and a Property and Financial Affairs LPA.