Enduring Powers of Attorney: Some basic information
Enduring Powers of Attorney (‘EPA’) and Lasting Powers of Attorney (‘LPA’) are both documents which you can sign in order to give authority for your ‘Attorneys’ to make decisions on your behalf.The EPA is restricted to financial and property decisions, whereas the LPA can also include health and welfare decisions (there are two types of LPA; one for financial and property affairs and one for health and welfare).
EPAs ceased being created on 30 September 2007.It is now only possible to have LPAs created.However, if you still have an EPA, your Attorneys can still register it.
An EPA should be registered if the Donor (the person who made the EPA) is or is losing mental capacity.Sometimes it is tricky to know when it appropriate to register the EPA and an Attorney may wish to seek the advice of a medical professional.A basic guideline is that if a person has become incapable, by reason of mental disorder, of managing and administering his or her property and affairs then this would suggest it is an appropriate time to register the EPA.It is prudent to register as soon as the Attorney has any grounds to believe that the Donor has lost capacity.
Once the registration process is underway, it is important to note that an Attorney’s powers are restricted until the EPA has been registered.However, once the EPA has been registered, the Attorney will have, in principle, the same powers as he or she had before the onset of the Donor’s mental incapacity.
The procedure for registering an EPA involves giving notice to the Donor and prescribed relatives then applying to the Office of Public Guardian for registration.There is usually a court fee, unless an exemption applies.
Notice to the Donor’s relatives gives them an opportunity to object to the registration if they feel it is not appropriate. This could be, for example, because they do not feel the Donor is losing or has lost capacity, or they do not feel the Attorney is suitable.
As mentioned above, it is important to note that the EPA does not give the Attorney authority to make decisions in respect of the health and welfare of the Donor.If someone wishes to appoint an Attorney to be able to make these types of decisions, then they need to make an LPA. It is wise to ensure that, if the Attorneys differ between the two documents, that both Attorneys know of the existence of the other, as they may be needed to work together, for example, if the Donor’s house needs to be sold.
It is always advisable to review the Attorneys you have appointed in your EPA from time to time.If they are no longer appropriate, then the EPA can be revoked and an LPA for financial and property affairs can be made.This can be registered straightaway and used immediately upon registration regardless of whether the Donor has lost capacity.
If you would like any guidance regarding EPAs or LPAs, please contact Charles Fraser in our Private Client Department who specialises in older client issues.
Please note the contents of this blog are given for information only and must not be relied upon. Legal advice should always be sought in relation to specific circumstances. Longmores Solicitors LLP are not regulated by the Financial Conduct Authority and are not authorized to provide any form of financial advice.
