What is an Enduring Power of Attorney (EPA)?
An EPA is a document created before October 2007 appointing a person (an ‘Attorney’) to manage the property and financial affairs of another person (the ‘Donor’).
When can an EPA be used?
An EPA can be used to delegate some decision-making while the Donor still has the mental capacity to manage his/her own affairs ( subject to any restrictions contained in the power).
However, if the Donor starts to become unable to make financial decisions, the EPA must be registered with the Office of the Public Guardian (OPG) before it can continue to be used.
During the registration process the attorney(s) will only be to make limited decisions to maintain the Donor’s current financial position.
New EPAs cannot be created but EPAs signed before October 2007 can still continue to be used.
How is an EPA registered?
Registration at the OPG is done by one or more of the Attorneys by:
- Sending formal notice to the Donor and at least 3 of the Donor’s family members in the following order of preference: husband/wife/civil partner; children; parents; brothers and sisters (including half-brothers and sisters); widower, widow or surviving civil partner of pre-deceased children; grandchildren; nephews & nieces; aunts and uncles; cousins
- Sending an application to the OPG together with the registration fee, currently set at £82. Exemption or remission from the fee is available depending on your financial circumstances
- A statutory waiting period must then pass (currently set at 5 weeks from the date the relatives receive their notification) during which the relatives can enter objections
- If all the papers are correct and no objections are received the OPG will then register the document and return it to the nominated recipient.
What happens after the registration?
We would generally provide the Attorneys with certified copies of the registered EPA which they can then take to each of the Donor’s banks, building societies etc. There may then be further paperwork to complete for the banks before the Attorney can step into the Donor’s shoes financially.
An Attorney cannot do whatever they please with the Donor’s money. They must keep the money separate from their own and they must follow the principles of the Mental Capacity Act 2005 and always act in the Donor’s best interests. Attorneys must keep accurate financial records and details of decisions that are made as they are answerable to the OPG and the Court of Protection. They may, after the Donor’s death, be asked to account for their actions by the Executor or Administrator of the deceased Donor’s estate.
When does the EPA come to an end?
- If the EPA has not yet been registered, then it can be cancelled by the Donor if they still have the mental capacity to do so
- If the EPA has been registered it can only be revoked with the confirmation of the Court of Protection.
- An Attorney can retire from their position by signing a deed of disclaimer
- An EPA, whether registered or unregistered, automatically comes to an end on the Donor’s death