28 January 2015

Is an Enduring Power of Attorney still valid?

It can often come as a surprise to clients that although a new Enduring Power of Attorney (EPA) can no longer be created, if a person made a validly executed EPA before October 2007 it can still continue to be used.

Lasting Powers of Attorney (LPAs) have now replaced EPAs and come in two types: one for property and financial affairs and one for personal health and welfare matters. Both EPAs and LPAs are documents which appoint a person as an attorney to manage another person’s affairs when they are no longer able to. A person who still has capacity can either consider putting a new property and financial affairs LPA in place or can keep their existing EPA.

Unlike an LPA, an EPA can be used even when it is not registered, provided that the person giving the power (donor) still has the mental capacity to manage their own affairs. Once the donor is, or is becoming, mentally incapable of managing their finances then the attorney has a statutory duty to register the EPA with the Office of the Public Guardian. In practice an attorney will find, however, that banks and other institutions increasingly demand that an EPA be registered before they will accept it.

The process of registering an EPA requires the notifying of certain categories of relatives. Once the EPA is registered, the donor is considered as no longer able to manage their own affairs. This means that the attorney is fully responsible for the donor’s property and financial affairs and is accountable to the Office of the Public Guardian.

If you would like some assistance to guide you through the process of registering an Enduring Power of Attorney or to discuss the possibility of putting Lasting Powers of Attorney in place, please contact our private client team on 01905 612001.

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About the Author
Dawn Oliver, Partner, Head of Wills, Trusts and Estates
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