Enduring Powers of Attorney

In 2007, Enduring Powers of Attorney (EPA) were effectively replaced by the introduction of Lasting Powers of Attorney (LPA). Whilst an EPA signed on or before 1 October 2007 is still valid and can be used, you can no longer make an EPA. After this date, an LPA must be made instead. You can use an EPA at any time providing the EPA is legally valid and the Donor (the person who made the EPA) gives the Attorney (the person who is appointed by the Donor) permission. If the Attorney believes the Donor is losing capacity and is no longer able to make decisions due to a mental impairment, the document must be registered

Difference between EPA and LPA

An EPA only relates to property and money, whereas an LPA can relate to property and financial affairs, or health and welfare.

EPAs are only registered at the Office of the Public Guardian if the Donor starts to or has lost mental capacity. Whereas an LPA can be registered as soon as it has been signed. The idea with the LPA is it it registered at a time where you do not require it, so when you did need it, it can be used straight away. With an EPA, the Attorney must wait for the registration to be completed. Registration can take at least 6 weeks.

Registration of EPA

In order to register an EPA, you must notify the Donor, at least 3 of their family members who are eligible (over 18 years and have mental capacity) and any attorneys who were appointed “jointly and severally” but not applying to register the EPA. You must do all you can to find the people you are required to notify.

Once you have notified all of the relevant parties of your intentions to register, you must submit the document to the Office of the Public Guardian.

After Registration

Once the EPA has been registered, you will have full power to administer the Donor’s affairs (subject to any restrictions contained in the EPA). 

You must follow the Mental Capacity Act 2005 Code of Practice whenever acting on your behalf.  This Code gives guidance as to how decisions should be made by and for people with impaired capacity and is essential reading for all attorneys.  In particular, the Code states that your attorney should support you to make your own decisions if you are able to do so, rather than simply taking the decision for you.  Any decisions that your attorney takes on your behalf must be in your best interests. 

The OPG has wide powers to supervise the actions of attorneys.  That said, it will not usually exercise these powers unless problems are brought to its attention.  It is therefore extremely important that you only choose as your attorney somebody in whom you have the utmost confidence that they will act in your best interests. 

Our Fees

Our fixed fee rates to register an EPA is between £600-£650 plus VAT (charged at 20%). This is dependent on the number of parties we are required to notify of registration.

Please note these fees will be in addition to the Office of the Public Guardian’s registration fee of £82.

This cost includes the provision of two certified copies of the EPA once it has been registered. 

Wake Smith is recommended in The Legal 500* for its personal tax, trusts and probate expertise.

FAQs

What is an Enduring Power of Attorney?

An Enduring Power of Attorney (EPA) is a legal instrument created by a person (the donor) to grant another person or persons (the attorney or attorneys) authority to act on their behalf. An EPA could only be made on or before to 1 October 2007 and only relates to a Donor’s property and financial affairs.

When can an EPA be used?

If the Donor is losing or has lost mental capacity, it is the duty of the Attorney to register the EPA. The Attorney will not be able to act on the Donor’s behalf until the EPA has been registered.

What does mental capacity mean?

Mental capacity is your ability to make a decision about a particular matter at the time the decision needs to be made. To make a decision you must be able to consider the relevant information, evaluate the different options, and make a choice.

Is my EPA still valid?

An EPA signed on or before 1 October 2007 remains valid.

However it is worthwhile to regularly review your EPA to ensure the information in the EPA is up to date and the people appointed as Attorneys are still who you want to be able to make decisions on your behalf.

Can I amend my EPA?

Once an EPA has been signed, it becomes a Deed and cannot be amended.

If you want to remove someone as your Attorney or cancel the EPA then a Deed of Revocation must be made.

If you want to appoint a new Attorney then a new Power of Attorney must be made. You can no longer make an EPA therefore a Lasting Power of Attorney must be made instead.

What is the difference between an EPA and LPA?

In 2007, EPA were effectively replaced by the introduction of Lasting Powers of Attorney (LPA). An EPA only relates to property and money, whereas an LPA can relate to property and financial affairs, or health and welfare.

EPAs are only registered at the Office of the Public Guardian if the Donor starts to or has lost mental capacity. Whereas an LPA can be registered as soon as it has been signed. The idea with the LPA is it it registered at a time where you do not require it, so when you did need it, it can be used straight away. With an EPA, the Attorney must wait for the registration to be completed. Registration can take at least 6 weeks.

How do I register my EPA?

The Attorney must serve notice on the Donor and at least 3 of their close relatives that they intend to register the EPA. The Attorney then has 10 days from serving the noticed to submit the original signed and completed EPA, together with a completed application form, to the Office of the Public Guardian (OPG). The OPG will wait 5 weeks following receipt of the application to allow any relevant parties to object. The OPG will then proceed to register the EPA.

Is there a fee to register the EPA?

The OPG charge a fee of £82 for the registration of an EPA.

This is payable by the Attorney, however the Attorney can recover this fee from the Donor’s finances once the EPA has been registered.

Should I still consider a LPA, even if I have an EPA?

An EPA allows your attorney to deal with matters relating to property and affairs only, and not health and welfare. An EPA also does not allow your attorneys to deal with any assets which are held by discretionary fund managers.