What is an Enduring Power of Attorney?

An Enduring Power of Attorney is a legal process in which a person (the Donor) hands over to someone else (the Attorney) the power to decide what is done with their financial affairs and property. They were replaced in October 2007 by Lasting Powers of Attorney. If you made one before this date though it can still be registered with us using the registration forms available here.

The Attorney can use the power straight away if that is what the Donor wants. Or the Donor can make it clear that the EPA is only to be used if they become mentally unable to manage their affairs in the future.

In this way, an EPA allows the Donor to choose somone they trust now to deal with their affairs if they become mentally unable to manage them themselves in the future.

Please note: An EPA only covers decisions relating to a Donors financial and property affairs.

Back to top

What are my duties as an Attorney?

  • You must act in the best interests of the Donor and consider their needs and wishes as far as possible.
  • You must not take advantage of the Donor’s position to gain any benefit for yourself. 
  • You must keep the Donor’s money and property separate from your own and other peoples.

It will also be sensible to read and follow the Code of Practice which supports the Mental Capacity Act.

You do have very limited powers to make gifts to yourself or others. Remember, you are managing someone else’s money and you have legal duties which you must respect.

Back to top

When do I register the EPA?

You must only apply to register the EPA when you believe that the Donor is becoming or has become mentally incapable of handling their own affairs. You can do this on form EP2PG available for download in the Office of the Public Guardian forms section of this website.

Back to top

Should I wait until the Donor is completely unable to manage their affairs?

You should make the application to register the EPA as soon as you have reason to believe the Donor is losing the mental capacity to manage their affairs.

Back to top

Do I have to provide medical evidence?

This is not necessary unless the EPA says you do. If you are in any doubt, it would be sensible to get a medical report from a doctor.

Back to top 

Do I have to tell anyone that I am registering the EPA?

Before you send us form EP2PG, you must tell the donor that you intend to register the EPA. You must also tell at least three of their relatives. You must do this on form EP1PG available for download in the Office of the Public Guardian forms section of this website.

Back to top

What happens when I make the application?

We will check the EPA and your application form. If there are any problems, we will contact you or the solicitors handling the matter.

If there are no problems, we will set a registration date and let you and any solicitors instructed know when it is. The date will be 35 days from the latest date on which you sent or gave the notices of intention to register (EP1PG). This is because everyone who is entitled to notice is also entitled to object to the application for registration.

Back to top

Will I get the EPA back after it has been registered?

We will return the EPA within five days of the registration date if there were no problems with, or objections to, the application.

Please note that if there are any problems or queries, it may not be possible to register the EPA after 35 days until these have been resolved.

Back to top

Objections to the registration of an EPA

Only those entitled to notice are able to object to the registration of an EPA. 

Only objections received in time and made on one or more of the following grounds are valid: -

  • That the power purported to have been created by the instrument was not valid as an enduring power of attorney
  • That the power created by the instrument no longer subsists
  • That the application is premature because the donor is not yet becoming mentally incapable
  • That fraud or undue pressure was used to induce the donor to create the power
  • That having regard to all the circumstances and in particular the attorney’s relationship to or connection with the donor, the attorney is unsuitable to be the donor’s attorney

If a valid notice of objection is received then the OPG will write to you and let you know your application to register the EPA has been suspended and the steps you need to take next.

Back to top

Can I continue to manage the Donor’s affairs while you are considering an objection?

You can usually continue to maintain a donor and prevent loss to their estate, but you should act with caution. Please ask our advice if you are unsure as to the actions you can take on the donor’s behalf.

Back to top

Do you supervise how I manage the Donor’s affairs?

We do not usually supervise attorneys or tell them how they should manage Donors’ affairs. If concerns are raised about the actions of an attorney, we may investigate. The Court of Protection has powers to request accounts and other information from attorneys.

Back to top