Enduring Powers of Attorney (EPA) and when to register

Prior to Lasting Powers of Attorney coming into Force on the 1 October 2007, a donor (the person granting the power to attorneys to manage their affairs) granted an attorney permission to manage their financial affairs via an Enduring Power of Attorney.

NB Enduring Powers of Attorney are still the legally valid documents of USA, Australia, Canada and Ireland. The name change from ‘Enduring’ to ‘Lasting’ relates only to the document created for England and Wales.

Under an EPA an attorney is responsible for helping the donor make decisions about their finances, such as their:

• money and bills
• bank and building society accounts
• property and investments
• pensions and benefits.

Is my EPA legally valid?

Post 2007, existing Enduring Powers of Attorney are still entirely valid provided:

• they were signed before 30 September 2007
• they were signed by all parties, i.e. the donor and all named attorneys
• all signatures were witnessed and dated
• the relevant deletions have been made on page 1 as to what restrictions may be in place.

When can my attorney begin acting?

Under an Enduring Power of Attorney, the donor can add restrictions as to when the attorney(s) began acting on their behalf, such as:

• without restriction – so that they can act any time from the date it was signed with or without the donor’s knowledge or involvement
• with certain conditions – so that they may have freedom to make decisions over some assets but not others or
• only once the attorney(s) can prove the donor has lost mental capacity.

Such proof can come via an assessment by a professional such as a solicitor by usually (particularly if the solicitor is storing the original EPA) the solicitor will request the donor’s GP or medical treating team provide their opinion in written format.

That said, if the EPA is without restriction on the issue of capacity, a medical report is not required as part of the application process to the Office of the Public Guardian (hereafter ‘the court’) for registration.

When should my attorney register my EPA?

Whilst the donor still has capacity to oversee when and how their attorneys are acting for them, the EPA does not need registering and the donor effectively ‘monitors’ the attorneys’ actions.

Once the attorney(s) suspect the donor is or is becoming unable to manage their financial decisions, or be involved with the decisions the attorney is making, the attorney MUST register the EPA with the Office of the Public Guardian regardless of whether they were allowed to act unrestricted whilst the donor had capacity.

If the attorney(s) suspect the donor is or is becoming mentally incapable, then their decision-making powers become restricted until the EPA is registered. Between the period of loss of capacity and registration, the attorneys’ only powers are to use the donor’s monies to ensure the funds are invested risk free and that the donor is adequately and safely looked after.

If the attorney(s) fails to register the EPA once the donor starts to lose capacity then they will be breaching their powers and failing to comply with the terms of a document, which they agreed to at the time of signing.

Should my attorney register my EPA early in preparation for my loss of capacity?

No. An EPA is a more draconian document than a Lasting Power of Attorney (for more information on a comparison between the UK Powers of Attorney see HERE) meaning that once registered, a donor no longer has the power to stay involved with the management of their own affairs!

This is because an EPA is governed by the Enduring Powers of Attorney Act 1985 which does not make provision for the donor to be kept involved in the way the Mental Capacity Act 2005 does with regards to Lasting Powers of Attorney.

How does my Attorney Register my EPA?

There is a prescribed format as to how the application is submitted within the EPA Act 1985 with required formal notification to be presented to the donor himself (even if he lacks capacity) and a minimum of 3 of the donor’s relatives (as set out under Schedule 1 of the EPA Act 1985).

A medical report must also be submitted if there is a capacity restriction within the original EPA.

In addition to any medical report fee there is a set registration application fee due to the court of £82.

The forms to be used are the prescribed forms EP1 Notice of Intention to Apply for Registration and EP2 Application for Registration.

For more information on the practicalities of the registration process, see HERE

Will the court object to the registration?

It is not a guarantee that the court will in all cases register an EPA just because an application is made. Under the EPA Act 1985 section 6(4), the attorney must navigate the following to ensure registration is passed without unnecessary delay where:

• a valid notice of objection to the registration is received by the court before the expiry of the period of five weeks beginning with the date or, as the case may be, the latest date on which the attorney gave notice to any person under Schedule 1, (i.e. the minimum of 3 relatives) or
• it appears from the application that there is no one to whom notice has been given under paragraph 1 of that Schedule, or
• the court has reason to believe that appropriate inquiries might bring to light evidence on which the court could be satisfied that one of the grounds of objection set out in subsection (5) below was established,

In the above circumstances, the court shall neither register the EPA nor refuse the application until it is satisfied the attorney has made such inquiries as the court deems appropriate in the circumstances of the case.

As mentioned, the application process also allows for objections to the registration on one or more of the following grounds (section 6(5)), namely where:

• the power purported to have been created by the instrument was not valid as an enduring power of attorney;
• the power created by the instrument no longer subsists;
• the application is premature because the donor is not yet becoming mentally incapable;
• fraud or undue pressure was used to induce the donor to create the power;
• having regard to all the circumstances, and in particular the attorney’s relationship to or connection with the donor, the attorney is unsuitable to be the donor’s attorney.

Create a new Power of Attorney

Of course, there is no substitute for bespoke legal advice, but if you do not have a Power of Attorney in place currently and your circumstances are straightforward, then it is entirely possible to create your own new Lasting Power of Attorney online (for an explanation as to the difference between the types of Powers of Attorney see HERE).