What is an Enduring Power of Attorney?
Enduring Powers of Attorney were used prior to the introduction of Lasting Powers of Attorney in 2007, which enable an individual (also known as the donor) to appoint others (also known as attorneys) to manage their affairs and make decisions which relate to their property and finances, in the event that they no longer retain sufficient capacity to do so themselves. The EPA does not cover the scope of health and welfare.
What is the Office of the Public Guardian and what role do they play?
The Office of the Public Guardian is the government body which oversees Enduring Powers of Attorney and has authority to do the following:-
- Register EPAs only. The Court of Protection can revoke a registered EPA upon application. The Donor can revoke an unregistered EPA by Deed.
- Determine questions regarding the meaning or effect of an Enduring Power of Attorney.
- Give directions to the attorneys in relation to the handling of the donor’s affairs.
- Require the attorneys to provide information to them.
- Give consents or authorisations to attorneys when they are required.
What do the attorneys need to do before applying for an Enduring Power of Attorney to be registered?
In order for the attorneys to consider registering an Enduring Power of Attorney with the Office of the Public Guardian, the attorneys must believe that the donor has or is beginning to lose sufficient capacity in order to manage their own affairs. The attorneys must ensure that prior to applying for the Enduring Power of Attorney to be registered at the Office of the Public Guardian, they have:-
- Sent notice to at least 3 members of the donor’s relatives (who are at 18 years old and retain sufficient capacity) via Form EP1PG informing them that they are looking to register the donor’s Enduring Power of Attorney.
- Sent notice to any attorneys who are appointed jointly and severally who are not applying for the Enduring Power of Attorney to be registered (appointed to make decisions together and also separately in such events due to their geographic locations etc.).
- Confirmed within Form EP1PG all of the attorneys who have been appointed under the Enduring Power of Attorney by the donor on a joint and several basis.
- Provide the donor’s relatives with the grounds on which they can raise any objections against the registration of the Enduring Power of Attorney. The list of permitted grounds for which the donor’s relatives can object, are contained within Form EP1PG. The relatives have 35 days from when they have first received Form EP1PG, to object to the registration of the Enduring Power of Attorney.
The attorneys must also ensure that the donor has received notice via Form EP1PG of their intentions to register the Enduring Power of Attorney and, also confirm, that the donor will be unable to revoke it without the Court’s confirmation.
Registering an Enduring Power of Attorney with the Office of the Public Guardian
Once the attorneys have ensured that the above steps have been carried out, they can then send the signed Enduring Power of Attorney to the Office of the Public Guardian for registration via https://www.gov.uk/government/organisations/office-of-the-public-guardian along with a completed Form EP2PG. The attorneys must also send copies of Forms EP1PG which they have sent to the donor and the donor’s relatives, in relation to the Enduring Power of Attorney being registered. The current application fee for registering an Enduring Power of Attorney is £82.00. The typical timescale for an Enduring Power of Attorney to be registered by the Office of the Public Guardian is usually around 2-3 months, however, this can vary depending upon the Office of the Public Guardian’s current workload, if they require any further information from the attorneys and, if any of the donor’s relatives have raised any objections against the application.
What happens after the Enduring Power of Attorney has been registered?
The registered Enduring Power of Attorney can be used by the attorneys as and when they need to assist the donor with their affairs and decisions relating to property and finances, However, the attorneys should bear in mind the following, when using the registered Enduring Power of Attorney:-
- They cannot disclaim the Enduring Power of Attorney without notifying the Office of the Public Guardian.
- The donor cannot vary the scope of the authority which they have granted to the attorneys at a later date.
- The Enduring Power of Attorney will be revoked in the event of only one attorney later becoming bankrupt.
If you would like to discuss your existing Enduring Power of Attorney (prior to registration), or, if you are an attorney of a donor’s Enduring Power of Attorney and require assistance in registering the document please contact our Wills, Trusts and Probate department who will be delighted to assist you on 0161 926 9969 or by email at firstname.lastname@example.org
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