Enduring Powers Of Attorney – Are They Still Effective?

What is an Enduring Power of Attorney?

Enduring Powers of Attorney (EPA) preceded the Lasting Powers of Attorney (LPAs) that were introduced by the Mental Capacity Act 2005. Before 1^st October 2007, EPAs were in place for individuals (the Donor) to appoint Attorneys to be able to deal with their general property and affairs.

You will note that they did not cover health and care decisions, and this is a very important distinction between EPAs and LPAs. The LPA has a separate document to cover health and care decisions.

When can the Enduring Power of Attorney be used?

As long as the EPA is valid and met the requirements upon execution, the EPA does not need to be registered in order to be used. However, it must not contain a restriction that can only be used upon the donor’s mental incapacity. The Donor is the person who created the EPA.

To be validly executed, the Donor must have had the relevant capacity when the document was signed initially. It is essential that the Donor understood the authority they were giving under the Power of Attorney. The document must also be in the correct prescribed form.

It is important to note that the EPA can be used with the Donor’s permission by the Attorneys, before it is registered with the Office of the Public Guardian (OPG), as long as there is no restriction stated within the document. There is no requirement for the EPA to be registered with the OPG until the Attorney believes that the Donor is losing or has lost mental capacity.

How do we register the Enduring Power of Attorney?

The EPA registration process is by way of an application to the OPG. Certain forms need to be completed and relevant notices served on the Donor and their family members in a specific order. There will be a registration fee to be paid of £82.00 to the OPG for the document to be formally registered.

What if circumstances have changed and the Attorneys are no longer appropriate?

Unfortunately, with EPAs and LPAs, the documents cannot be amended after they are formally executed (signed). This would mean that if the Donor no longer wishes to appoint the Attorney’s that they previously chose, they would need to make an application for a LPA, as the EPAs are no longer created. It should be noted that the relevant capacity would be required to prepare these forms.

Likewise, if the Donor wanted their Attorneys to be able to make health and care decisions, for example, on where they were to receive care or life-sustaining treatment decisions, then they would need to prepare a Health and Care Decisions LPA.