Can I Cancel My Registered Enduring Power Of Attorney?

Cancelling Enduring Power of Attorney

What is an Enduring Power of Attorney?

An  Enduring Power of Attorney is a document that allows you (the donor) to appoint an attorney to make decisions in relation to property and financial affairs. You can no longer create an Enduring Power of Attorney as they were replaced by Lasting Powers of Attorney (LPA) on 1 October 2007 by the Mental Capacity Act 2005 (MCA 2005).

If you have an Enduring Power of Attorney this is still a valid document that can be registered by your attorney with the Office of the Public Guardian (OPG) when you begin to lose the mental capacity to manage your own financial affairs.

Is it possible to cancel an Enduring Power of Attorney?

Recently, we received an enquiry from a client to ask for her EPA to be cancelled as she no longer wanted her attorney to act, as she could do this herself.

As part of the registration process with the OPG, a donor has five weeks to object but if this window has passed, the Court of Protection needs to order the OPG to cancel the Enduring Power of Attorney from their register.

The Court of Protection is a specialist Court that has the authority to make decisions relating to financial and welfare applications received on behalf of vulnerable adults. Many decisions are taken by the Court when the vulnerable adult lacks the mental capacity to make them, but some aspects of the Court work are technical to the validity of a Power of Attorney.

The Court application

Paragraph 16(3) of Part 5 of Schedule 4 to the MCA 2005 provides the legal position, to allow the OPG to cancel the registered Enduring Power of Attorney on the grounds that the donor has the mental capacity to revoke it.

The donor must show that they:

  • Have ‘done whatever is necessary in law to effect an express revocation of the power’ – the best step to do this is to complete a deed of revocation.
  • Were ‘mentally capable of revoking a Power of Attorney when he did so’ – the Court will need to see an assessment of the donor’s mental capacity, ideally a form of medical evidence to confirm the position.

The donor is questioning the validity of the registration of the EPA on grounds that it has occurred ‘premature because the donor is not yet becoming mentally incapable’.

We have also seen cases where the donor has regained the mental capacity to manage their own affairs, therefore we would follow the same application process.

We are asking the Court to confirm the revocation of the Enduring Power of Attorney and to direct the OPG to cancel the registration of the instrument under paragraph 16(4)(c) of Part 5 of Schedule 4 to the MCA 2005.

Safeguarding your finances – case example

Karen Salt, Associate in our expert Wills and Probate team, initially received the enquiry from her client, understanding that they were unhappy about their chosen attorney and Enduring Power of Attorney being registered.

Karen addressed this with her client and gained an assessment of her mental capacity to make decisions relating to her Enduring Power of Attorney and to create an LPA with an attorney of her choice. Someone they could trust to assist them in managing all aspects of property and financial affairs.

Karen approached Gemma Hopper, Senior Associate in our specialist Court of Protection team, to assist in the drafting of the Court application. Gemma acknowledged the complexities surrounding the revocation of the Enduring Power of Attorney with the Court and the possibility of making the application alongside registering the new LPA for our client to ensure her wishes and feelings were supported.

Tanya Kirman, Paralegal in our Court of Protection team, then attended a meeting with Karen to take instructions from our client. Tanya was able to provide support to them concerning the information and forms needed to make the application and reviewed the medical evidence to ensure the application could progress.

The ability to work so closely with our specialist teams, means we can ensure our clients receive the correct advice regarding their Powers of Attorney and when the Court of Protection is needed, we can work together to provide them with the right result. All Powers of Attorney are important and it’s important to check which document you have to ensure it remains right for you.

How can we help?

If you have any concerns or queries concerning your Enduring Power of Attorney or LPA, please do not hesitate to contact our Wills and Probate or Court of Protection teams in Derby, Leicester and Nottingham on 0800 024 1976 or via our online enquiry form.

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