In March we published an article entailed, Should I replace my Enduring Power of Attorney with a Lasting Power of Attorney? It lays out the advantages of preparing an LPA to replace your EPA. However, what should you do if your family member has made an EPA, but no longer has capacity to set up an LPA?
As discussed in the previous article, EPAs can be used, unregistered, by the attorneys whilst the Donor still has capacity, but if they start to lose capacity then the EPA must be registered by the attorney in order to be used going forwards.
Establishing whether someone has capacity can sometimes be obvious, but in a lot of cases it is not always clear. For the purposes of registering an EPA, if an attorney believes that the Donor has lost or is starting to lose capacity and can no longer manage their own affairs, then they should register the EPA.
What is an enduring power of attorney?
An enduring power of attorney (EPA) in the UK is a legal document that allows an individual, known as the “donor,” to appoint one or more “attorneys” to manage their financial affairs and property in the event they become mentally incapacitated. Unlike a lasting power of attorney, which can cover health and welfare decisions, an EPA solely focuses on financial matters. It’s important to note that EPAs were replaced by lasting powers of attorney (LPA) in October 2007, but EPAs created before this date are still valid. Understanding the differences between an EPA and an LPA is crucial for effective estate planning in the UK.
Registering an enduring power of attorney in the UK
Once you have established that the EPA needs to be registered, how do you actually register it? The first thing to do is check who the other attorneys are (if any) and how they are appointed. If they are appointed “jointly” then the application will need to be made by all attorneys. If they are appointed “jointly and severally” then only one attorney needs to make the application, but the others will need to be notified.
As well as notifying the attorneys, at least 3 family members also need to be notified that the EPA is going to be registered. To be notified, the family members must be over 18 and have capacity. The purpose of notification is to allow them the opportunity to raise any issues or concerns they might have with the EPA being registered. The Donor also needs to be notified despite their possibly lacking capacity. In practice this can be extremely awkward if the donor retains a degree of capacity as they might object to the registration.
Who needs to be contacted and in what order?
There is a specific order in which family members need to be contacted. It starts with the Donor’s spouse and goes right down to first cousins. If you notify one person in the category, you must notify everyone in that particular category. For example, if the Donor has no surviving spouse or parents, but one child and four siblings (all still with capacity) then all five relatives need to be notified. If a family member does not have capacity, then they cannot be counted as one of the three members to be notified.
If the Donor has no spouse but has three children, all of whom are attorneys applying to register the EPA, then notice does not need to be given, but the Office of the Public Guardian will make independent enquiries before registering the EPA.
As you can see, the process of registration is not always simple, and many people are unaware that registration may even be needed in the first place. It is important to get it right so that the document can be registered as quickly as possible, as whilst the document is being registered the attorneys can only exercise very limited powers.
How we can help
If you would like assistance with registering an EPA please feel free to get in touch with one of our solicitors in the Private Wealth Team at Moore Barlow. We will be happy to help.
