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
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.