There are clients who are still in possession of an Enduring Power of Attorney (EPA) and one of the first questions that a client may ask is if it is still valid. If the EPA was signed before 1 October 2007 in the correct manner, then yes, the EPA will still be valid.
Enduring Power of Attorney Background
An EPA was created to allow the Donor to appoint individuals they trust to act as their Attorneys should they lose mental capacity. However, EPAs were limited to financial assets, making it the predecessor of todays Property and Financial Affairs Lasting Power of Attorney (LPA).
An EPA can be used before it’s registered if the Donor still has mental capacity and the EPA does not have any restrictions. If the Donor does not have mental capacity, an EPA must be registered before it can be used by the Attorneys. The Attorneys would need to register the EPA if they believe the Donor is becoming mentally incapable of managing their affairs.
Unlike LPAs, the donor could not choose who they wish to be notified of the registration of the EPA. Instead the Enduring Powers of Attorney Act 1985 states that when an Attorney applies to register the EPA, they must notify the Donor and a minimum of three other people who are;
- their nearest relatives; and
- any other Attorneys if they are not jointly registering the EPA.
Any individual in receipt of a notice may object to the registration of the EPA.
The list of notifying people and the order of priority is extensive; however, the full list can be found on the Office of the Public Guardians’ EPA guidance.
Depending on the length of time since the EPA was created, it would be advisable for the Donor to review their EPA to determine if they require an LPA. They do not need to create a new LPA if any details, such as the address of the Attorneys are out of date. But would need to if they wish to add or remove any of the contents of the EPA, for example; Attorneys or restrictions. A signed EPA must not be amended.
An EPA does not grant the Attorneys any power of the Donors Health and Welfare. If the Donor does not have a Health and Welfare LPA, it would be advisable for them to create one.