Registration of an Enduring Power of Attorney
Following the introduction of Lasting Powers of Attorney, no new Enduring Powers of Attorney (EPA) can be made. However, existing EPAs remain valid and can be used in the following circumstances:
- With the consent of the person who made the EPA (the Donor) whilst the Donor has mental capacity
- In the event that the attorney believes the Donor has become or is becoming mentally incapable of handling his or her own affairs by registering the EPA with the Office of the Public Guardian (OPG).
If the Donor has become mentally incapable of managing his or her affairs, then the attorney MUST register the EPA with the OPG. Registration does not change the powers granted by the EPA but an important change does occur. This is that the attorney becomes subject to OPG scrutiny. Registration is necessary for the protection of the Donor AND the attorney - if registration has not occurred and the Donor has become mentally incapable of managing his or her affairs, the attorney leaves himself open to difficult questions. Once the EPA is registered, the attorney can act without reference to the Donor provided that he or she acts in the Donor's best interests.
In the event of mental incapacity the attorney should not operate the EPA until it is registered. However, day to day actions may still be undertaken such as payment of household or residential care bills.
If more than one attorney is appointed and if the attorneys are appointed on a joint basis, all attorneys need to register the EPA. If attorneys are appointed on a joint and several basis, then one or more of the attorneys may register the EPA.
Notification of Intention to Register an EPA
It is a requirement that the Donor and at least three relatives of the Donor be notified of the intention to apply for registration of the EPA. It is possible to apply for leave for non notification of the Donor or relatives if it would be upsetting or undesirable, but evidence in support will be required and leave is not often granted.
Certain categories of relatives must be notified in the following order:
- Donor's husband or wife or civil partner
- Donor's children (not stepchildren)
- Donor's parents
- Donor's brothers and sisters including half brothers and sisters (where one parent is shared)
- Widow, widower of surviving civil partner of a Donor's deceased child
- Donor's grandchildren
- Donor's nephews and nieces
- Donor's nephews and nieces (of half blood brothers and sisters)
- Donor's aunts and uncles
- Donor's cousins
Three relatives need to be notified BUT for example, if a Donor has a spouse and four children, then the spouse must be notified AND because a further two notifications are required that fall into the next category (where there are four members) ALL the children must be notified. If an attorney is one of the class then the attorney must be notified for these purposes.
It is possible for those notified to object on certain specified grounds to the registration such as the EPA is invalid, the application is premature as the Donor has capacity, that undue pressure or fraud has been applied to the Donor or that the attorney is unsuitable.
Registration failure
If the registration is refused then an application will need to be made to the Court of Protection for the appointment of a Deputy.
Fees
OPG Fees for registration vary from time to time. Please contact us if you require a fixed fee quotation for our assistance in assisting you in the registration process - contact details can be found below.
Death
Of Donor
The EPA becomes invalid and the Donor's executors become responsible for the Donor's affairs.
Of Attorney
- If the attorney is appointed to act solely, the EPA fails and an application will need to be made to the Court of Protection for the appointment of a Deputy to act for the Donor.
- If the attorneys are appointed jointly, then the EPA fails as above.
- If the attorneys are appointed jointly and severally then the surviving attorneys can continue to act for the Donor.
Wills
It is possible for the Donor to make a Will in the event of mental incapacity. Advice should be sought and it will invariably be necessary for a medical opinion to be obtained on the ability of the Donor to make the Will.
Queries and Help
If you have any queries at all please contact a member of the team:
Leanda Garton (leagarton@slpsolicitors.co.uk)
Sue Carlile (suecarlile@slpsolicitors.co.uk)
Michelle Fireson (michellefireson@slpsolicitors.co.uk)
 01376 321311
 Send an email
 The Team
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