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Wills, Probate & Trust

‘Dad has lost capacity. He made an Enduring Power of Attorney years ago, but can I still use it?’

Lasting power of attorney

Friday, January 29, 2021

Enduring Powers of Attorney (EPAs) were replaced by Lasting Powers of Attorney in October 2007. If you made an EPA before 2007, this can still be used, however, if the donor (that is the person who made the EPA) has lost or is losing capacity, you will need to register the EPA with the Office of the Public Guardian (OPG) before it can be used. An unregistered EPA can be used whilst the donor still has capacity.

A strict procedure must be followed in order to register an EPA. The process involves completing an application form and serving notice on the donor and at least three relatives of the donor of your intention to register the EPA. The Mental Capacity Act 2005 lists the categories of relative who are entitled to be notified and the priority order in which they are to be told. You cannot, therefore, pick and choose who to notify. All persons in a particular category must also be notified, which will often mean more than three relatives who actually end up being served notice.

Example

Harry has a wife, Joan, one child, Heather, two grandchildren, Jessica and Joshua, no surviving parents, four surviving siblings, Jimmy, Mary, Peter and Margaret.  The rules state that spouses or civil partners be told first, followed by children, then parents, then brothers and sisters (including half brothers and sisters), then surviving spouses or civil partners of a deceased child, then grandchildren, and so on. Harry appointed Heather as sole attorney under an EPA signed in 2005. Harry has now lost capacity and Heather intends to register his EPA.

Heather must notify Harry himself and then Joan. She must then notify Jimmy, Mary, Peter and Margaret (not just Jimmy to bring the number of relatives notified to three). She can notify Jessica and Joshua too, but she does not need to. She cannot, however, notify Jessica and Joshua instead of Jimmy, Mary, Peter and Margaret unless there is good reason for doing so. Good reasons would include if their addresses are unknown or if they lack capacity themselves. These reasons must be explained to the OPG in the application to register the EPA.

It is important that the procedure is correctly followed. If it is not, the application may be rejected by the OPG. This will cause delays and will undoubtedly increase stress and hassle for the donor and the attorney who is trying to help them.

If you or a relative has an EPA, before taking steps to use it, it is a good idea to review the document to ensure the arrangements in it are still appropriate. It may be more appropriate for you to consider making an LPA instead. It is also important to note that EPAs only allow attorneys to assist with property and financial matters, whereas there are two types of LPA, one allowing attorneys to make property and financial decisions and the other to make health and welfare decisions. If an EPA is in place only, then if the donor loses capacity then an application may still need to be made to the Court of Protection to assist the donor with their health and welfare decisions. Applications to the Court of Protection are stressful, expensive and onerous. Making LPAs now can prevent such applications being necessary.

Samuel Phillips Law are here to help. Whether you need advice about an existing EPA or setting up new LPAs, contact our Wills, Probate and Trusts Team today.

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