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Enduring Power of Attorney
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What is an enduring power of attorney?

An “enduring power of attorney” is a legal document in which a person is appointed to make decisions relating to their property and financial affairs on their behalf. The person so appointed is referred to as an “attorney”.

Enduring powers of attorney have been replaced by “lasting powers of attorney”, although any enduring power of attorney made and signed before 1 October 2007 can still be used.

For more information about lasting powers of attorney read our article called “lasting powers of attorney”.

What sort of decisions can an attorney take who has been appointed by an enduring power of attorney?

Enduring powers of attorney give an attorney the power to make decisions about the property and financial affairs of the “donor” (the person who made the enduring power of attorney).

An attorney can be given the power to make such decisions when a donor has the “mental capacity” to make such decisions, as well as when they lack such capacity.

A person has mental capacity if they can understand and remember information for long enough and be able to weigh up information to enable them to make a decision. They must also be able to communicate in some manner.

An attorney is under a duty to only make decisions which are in the “donor’s” best interests.

Does an enduring power of attorney need to be registered?

An enduring power of attorney does not need to be registered with the Office of the Public Guardian while ever the donor has the mental capacity to manage their own affairs. If the donor loses the mental capacity to manage their own financial affairs, the attorney must register the enduring power of attorney with the Office of the Public Guardian before they can use it.

How is an enduring power of attorney registered?

To register your enduring power of attorney you, or your attorney, will need to complete 2 forms and send them to the Office of the Public Guardian together with a fee to cover the cost of registration and the original enduring power of attorney form. The forms can be obtained from the Office of the Public Guardian or downloaded from their website. Details of the fee can also be found on their website.

The forms which need to be completed are as follows:

Form EP1PG

Form EP1PG is also referred to as the “notice of intention to apply for registration of an enduring power of attorney”. The purpose of this form is to ensure that anyone you named on the enduring power of attorney form is given notice of the application to register the enduring power of attorney. This enables them to object to the registration if, for example, they think that you may have been pressurised into making the enduring power of attorney. They will have up to six weeks to make any objections.

Form EP2PG

Form EP2PG is also referred to as the “application to register an enduring power of attorney”.

The form serves as a request for the registration of the enduring power of attorney.

Assuming that the forms have been filled in correctly and no one objects to the registration, the enduring power of attorney will then be registered.

Should I replace my enduring power of attorney with a lasting power of attorney?

Enduring powers of attorney made and signed before 1 October 2007 can still be used. Unlike enduring powers of attorney, lasting powers of attorney allow a donor to appoint someone to make decisions about their health and welfare in addition to their property and financial affairs. If you would like to appoint someone to make decisions about your health and welfare as well as your property and financial affairs you should make a “health and welfare lasting power of attorney”.

If you make a health and welfare lasting power of attorney your enduring power of attorney can still be used in relation to your property and financial affairs.

For more information about health and welfare lasting powers of attorney read our article called “health and welfare lasting powers of attorney”.

If you would like to make a “property and financial affairs lasting power of attorney” to cover your property and financial affairs you will need to cancel your existing enduring power of attorney.

Can I cancel my enduring power of attorney and how do I cancel it?

If your enduring power of attorney is not registered with the Office of the Public Guardian you can cancel it at any time, providing that you do not lack mental capacity, by completing and sending to your attorney and the Office of the Public Guardian a “deed of revocation”.

If your enduring power of attorney has been registered with the Office of the Public Guardian the Court of Protection’s permission must be obtained before the enduring power of attorney can be cancelled.

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