An Enduring Power of Attorney is a category of power of attorney which permits the Donor to assign someone to act on the Donor’s behalf in matters that relate to the Donor’s property and affairs. The Enduring Power of Attorney is valid even if the Donor later becomes mentally incompetent.
What is enduring power of attorney?
An enduring power of attorney could be used to manage the affairs of someone who has lost their mental capacity, or someone who you think may lose their mental capacity.
It is no longer possible to create a new enduring power of attorney, but if an enduring power of attorney was created before 1st October 2007 it can still be registered, and if it has already been registered will still be valid. This is because Lasting Powers of Attorney replaced Enduring Powers of Attorney in October 2007 when the Mental Capacity Act 2005 came into force.
Which power of attorney is right for me?
If you would like to manage the affairs of somebody who you think may lose their mental capacity and you do not already have an enduring power of attorney, you should use a lasting power of attorney.
If you already have an enduring power of attorney it cannot be used to manage the personal welfare of a person, but can still be used to manage their finances and property.
How do I register enduring power of attorney?
To use an enduring power of attorney after somebody has lost their mental capacity, it must be registered with the Office of the Public Guardian. It must be registered by the person who will be managing the affairs of the person in question, and certain people must be notified that you intend to register the enduring power of attorney.
The people who must be notified are:
- The person whose affairs you intend to manage
- Any other attorneys
- At least three of the person’s nearest relatives
Once this is done, you may apply to register the enduring power of attorney. JMR Solicitors can help you to do this.
How do you end an enduring power of attorney?
There are a few ways to end an enduring power of attorney, including:
- If the person still has mental capacity, they can cancel it
- An attorney may say that they no longer wish to be an attorney
- A court order
- The Court of Protection can end an enduring power of attorney if they think that the attorney has abused their position, or if they think that the person made the enduring power of attorney under duress or because of fraud
Will my enduring power of attorney still be valid?
Enduring Powers of Attorney (EPA) cannot be created after October 2007, but documents
created prior to that date are still valid.
Can my spouse and children serve as my attorneys?
Yes, you can have as many attorneys as you want, but they must be people you completely
trust. That may be your spouse and children.
Who are the Office of the Public Guardian (OPG)?
The OPG is a government agency tasked with protecting people who lack mental capacity.
They are in charge of keeping EPA and LPA registers up to date.
Does my EPA have to be registered?
The procedure for EPAs differs slightly from that for LPAs. They can be used prior to
registration, but this is at the discretion of each financial institution. Your attorneys are
obligated to register your EPA if you have lost or are about to lose mental capacity.
What if I don’t have an EPA or an LPA?
If you lose mental capacity and are unable to make your own decisions, someone can
petition the Court of Protection to be appointed as your Deputy. If approved, they will have
access to your affairs in the same way that an attorney does. Nevertheless, the process is
more time-consuming and expensive, and there is no guarantee that the person applying to
help you is the individual you would have selected for yourself.
Can an enduring power of attorney be changed to a lasting power of attorney?
If an enduring power of attorney exists but has not been registered, it can simply be destroyed. You can then make an application to a lasting power of attorney which can then be registered. Unlike an enduring power of attorney, a lasting power of attorney must be registered before it is valid.
Alternatively, the enduring power of attorney can be kept and a separate lasting power of attorney can be made to deal with any personal welfare issues.
For information and help on matters concerning Enduring Power of Attorney contact our friendly solicitors at JMR Solicitors.