What is an Enduring Power of Attorney 

An Enduring Power of Attorney (EPA) is a legal document appointing someone (an “Attorney”) to handle the property and financial affairs of another person (the “Donor”).

The document can be used whilst the Donor has capacity; however, when the Donor becomes or is beginning to become mentally incapable of making financial decisions and dealing with their own affairs, the Attorney must register the document with The Office of The Public Guardian.

Attorneys appointed jointly and severally 

Attorneys appointed jointly and severally are free to act and make decisions independently as well as together. This means that only one Attorney could apply to register the EPA, although for transparency the Office of the Public Guardian will only accept the application if all of the other Attorneys have been notified of the application and given the chance to object to it.

Where the Attorneys have acted together making the decision to register the EPA, all of their names should be listed on the necessary forms. This will ensure that they can all act on behalf of the Donor once the EPA has been registered.

Attorneys appointed jointly

Attorneys appointed jointly must always act together on every decision and must always agree before acting on the Donor’s behalf. If one Attorney does not agree with an intended action then that action cannot be taken. 

If the Attorneys have been appointed in this way, then all the Attorneys must apply to register the EPA together. If this is not possible then the EPA cannot be registered.

Registering the EPA

The Office of the Public Guardian does not require formal evidence that the Donor lacks capacity. However, in order to register an EPA, notice needs to be sent to relevant individuals. 

The Donor themselves and a minimum of three relatives must be notified of the Attorneys’ intention to register the EPA. Any other Attorneys appointed jointly and severally (not involved with the registration process) must also be notified.

The following is a list of relatives who must be notified, in priority order:-

1. Donor’s spouse or civil partner,
2. Donor’s children (including adopted children but not step-children),
3. Donor’s parents,
4. Donor’s brothers and sisters (including half siblings),
5. widow or widower or surviving civil partner of the Donor’s child,
6. Donor’s grandchildren 
7. Donor’s nephews and nieces (children of the Donor’s full siblings),
8. Donor’s nephews and nieces (children of the Donor’s half siblings),
9. Donor’s aunts and uncles (who are full siblings of a parent of the Donor), and
10. Donor’s first cousins (children of the Donor’s aunts and uncles who are full siblings of a parent of the Donor).

If one person in a particular category is notified of the application, then everyone in that category must be notified.

All reasonable attempts should be made to find relatives who should be notified, in priority order. If this is not possible then the next most appropriate relative should be notified, to make up the requirement to notify at least three relatives. If there are fewer than three relatives, this should be explained on the application form.

If the person applying to register the EPA realistically believes that giving notice to the Donor or three relatives would be particularly upsetting or undesirable, an application can be made to the Court of Protection for notice to be dispenses with. Evidence will be required to support this.

Right to object to registration

Any person who receives the notice of intention to register the EPA is entitled to object to the application. If there are any objections, then it may not be possible to register the EPA until all matters are resolved.

Any objections must be made to the Office of the Public Guardian within five weeks of receiving the notice. The grounds for raising an objection include the following:

• That the document is not valid (for example it was not properly signed and witnessed by the donor or the Donor did not have capacity when it was made 
• The EPA no longer exists
• The Donor is not yet becoming mentally incapable 
• Fraud or undue influence was used to induce the Donor to create the EPA
• The Attorney is unsuitable to act on behalf of the Donor

The Attorney or their Solicitor will be advised of any objections received. Only the Court of Protection can decide whether to uphold or dismiss the objection.  In these circumstances the Attorney can usually continue to manage the Donor’s affairs, but they should act with caution and seek advice if they are unsure about what actions they can continue to take on the Donor’s behalf. 

The Public Guardianship Office will hold the papers for 35 days from the date that the last notice was sent.  This allows time for any objections to be made. If there are no objections, then the EPA will be registered.

What if the Application to register an EPA is refused?

If the Donor has lost capacity to manage their financial affairs but the application to register their EPA is refused, then an application may have to be made to the Court of Protection to appoint a Deputy to make financial decisions on their behalf.

How Williamsons can help

Given the requirement to notify various people, registering an EPA requires a large number of forms to be completed which can be confusing and time consuming. Williamsons can assist with this and can correspond with all of the necessary people and the Office of The Public Guardian on your behalf.