How do I register an Enduring Power of Attorney in England and Wales?

Posted on By Joanna Pegum
Senior Adult Woman Filling Out Paperwork

Although it has not been possible to make a new Enduring Power of Attorney (EPA) since 1 October 2007, existing EPAs continue to be valid. So, if you have been appointed as an attorney under an EPA made before then, you can still use it to act on the donor’s behalf to manage his or her finances.

When can I act under the EPA?

If the donor is physically incapable but has mental capacity, then you can act under the EPA straightaway and manage the donor’s finances at his/her direction. You will need to take a certified copy of the EPA and your identification to the banks and other organisations where the funds are held.

If the donor is, or is becoming, mentally incapable, then you must register the EPA with the Office of the Public Guardian (OPG) to be able to act under it.

How do I register an EPA?

Registration is a two-step process. Firstly, you need to tell the donor and at least three of his/her relatives (and in some cases also your co-attorneys) that you intend to register the EPA using form EP1PG. Secondly, you then apply to register the EPA to the OPG.

Step one: notifying the donor

You must personally notify the donor and explain what it implies. If it is difficult for you to visit the donor, for example at the present time with COVID-19, then the notice can be posted to care home staff to give to him/her. It is not necessary for the donor to understand the notice.

Notifying the donor’s relatives

At least three of the donor’s relatives must be notified. The categories in order of priority are the donor’s:

  1. Spouse or civil partner (including where separated, but not divorced)
  2. Children (including adopted children, but not stepchildren)
  3. Parents
  4. Siblings (including half-siblings)
  5. Child’s widow or widower, or surviving civil partner
  6. Grandchildren
  7. Nieces and nephews (children of full siblings)
  8. Nieces and nephews (children of half siblings)
  9. Aunts and uncles
  10. First cousins

If the donor has no family member in a category, then you move on to the next category. Once a category is reached, every person in the category must be notified, even if this would result in more than three relatives being notified.

If, as attorney, you also fall into the category of relatives to be notified, then you count as one of the three, but you do not need to send a notice to yourself.

If a relative is under 18 or mentally incapable, then they do not count as one of the three people to be notified.

The notice should be sent by post, but if that is not possible then the relative can give permission to accept the notice by email. However, they must reply to confirm that they have received it.

The purpose of the notice is to give the person a period in which to come forward if they object to the registration of the EPA. This could be, for example, because the attorney is unsuitable to act on the donor’s behalf, or because the EPA was made under undue pressure.

Step two: registering the EPA

Step two is completing the Application for Registration form (EP2PG) and submitting this to the OPG together with the registration fee of £82.

If you have been appointed to act ‘jointly’ with your co-attorneys, then you must all apply to register the EPA.

If you have been appointed to act ‘jointly and severally’ with your co-attorneys, then any one of you can apply to register the EPA, but you will need to notify your co-attorneys of the application.

What if the donor cannot afford the registration fee?

If the donor cannot afford the registration fee, you may be able to apply for a remission or exemption of the fee.

How long will registration take?

The EPA will usually be registered within ten weeks of the application having been made. If there are any objections or problems, these will need to be resolved before the EPA can be registered.

What powers do I have while the EPA is being registered?

You have limited powers to maintain the donor and prevent loss to his or her estate.

What happens once the EPA is registered?

Once the EPA is registered, then you will take over full responsibility from the donor for managing his or her property and financial affairs.

You should provide a certified copy of the EPA and your identification to the banks and other financial organisations used by the donor.

You have duties and responsibilities which include always acting in the best interests of the donor and considering the Mental Capacity Act and supporting Code of Practice when acting on their behalf. You also have a duty to keep accounts of your management of the donor’s funds.

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Alison Craggs TEP is a Senior Solicitor at The Burnside Partnership in Witney, Oxfordshire

What to do if you’ve been appointed an attorney under an LPA

Posted on By Joanna Pegum
attorney with elderly man

If you have been appointed attorney under a friend or relative’s Lasting Power of Attorney (LPA), it is your responsibility to look after their affairs if they lose mental capacity. You may have been appointed on your own, or with other attorneys, and the LPA will specify whether you can act alone, or jointly with them.

The Office of the Public Guardian for England and Wales (OPG) has published some guidance for the two types of attorney, which will help you whether you are looking after their property and financial affairs, or their health and welfare.

Property and financial affairs

As an attorney for property and financial affairs, it’s your responsibility to look after the property and money of the person who made the LPA, who’s known as the donor.

This means you are responsible for their bank and building society accounts, claiming and receiving benefits, pensions and allowances, paying their bills (including for any care), buying or selling their home, and saving or investing on their behalf.

As soon as you become attorney, and while the donor still has mental capacity, make sure you get as much information as possible on where the donor keeps financial information, including the deeds to their home, and get certified copies of the LPA document.

Find out what their long-term plans are, for example, whether they want to sell or let their home if they need to move into a care home. Find out too, what their financial priorities are, for example, how much they like to keep in their current account, and how much to give to charity, or as birthday or other gifts.

Once you start acting as attorney, you will need to keep written records of their income and major outgoings, and keep bills. Make sure that their accounts are separate from your own.

It’s your job to help the donor make their own decisions, if they can. If they are not able to do so, you’ll need to follow any restrictions, conditions or guidance set out in the LPA. If it’s not clear, ask someone who knows the donor what they would be likely to do. Remember that every decision you make must be in their best interests.

Health and welfare

If you are an attorney for health and welfare, you need to make decisions on where the donor lives, which may be their own home or a care home, their day-to-day routine, their personal care and medical treatment.

As soon as you become attorney, and while the donor still has mental capacity, get to know the donor a bit better. Ask them where they want to live, and if it’s not specified in the LPA, whether they have made any care plans, including a living will. Find out what their preferences are, including diet, dress, hobbies, and where they like to spend their time. Ask what should happen to any pets, if they can no longer care for them.

Get certified copies of the LPA document, and contact details for their care providers, such as their doctor, dentist and optician.

When you become attorney you will need to follow any conditions set out in the LPA. If there is no clear guidance, ask others who know the donor.

As the donor’s attorney, you must help them reach their own decisions, if they can. You must always act honestly and in their best interests. Keep records of why you made particular decisions

Give your own contact details, as well as details of the donor’s likes and dislikes, to other people involved, including their family and friends, their doctor and other healthcare staff, and carers or care home staff. They may want to see proof of your identity and a certified copy of the LPA.

What is a Property and Affairs Lasting Power of Attorney, and how do you use it?

Posted on By Joanna Pegum
Older person counting coins in her palm

A Lasting Power of Attorney (LPA) is a legal document that allows you to appoint trusted individuals, who are known as attorneys, to make decisions on your behalf if you lose mental capacity.

The advice below focuses on the Property and Financial Affairs LPA. You can establish a separate LPA for Health and Welfare.

What can your attorneys do for you?

The LPA allows your attorneys to make a range of decisions in relation to your finances, including:

  • Paying bills,
  • Managing bank accounts,
  • Making investment decisions, and
  • Selling or renting property.

Who can you appoint?

You can appoint anyone that you trust to manage your affairs for you. The attorneys do not need any special qualifications, though they must be over 18, and not bankrupt or subject to a debt-relief order. If you are appointing more than one attorney, you can decide whether they are appointed jointly (all decisions to be made together) or jointly and severally (each attorney can act independently of the others).

When can your attorneys act?

Once signed, your LPA must be registered with the Office of the Public Guardian before the attorneys can act.

The attorneys can usually act immediately once the LPA has been registered, even if you still have mental capacity. This can be useful if you are travelling or physically incapacitated, for example if you are in hospital. It is also possible to specify that your attorneys can only act after you have lost capacity.

How should the attorneys make their decisions?

Your attorneys must always act in your best interests, and involve you in the decision-making process as far as possible. If you have lost mental capacity, they should consider your past wishes, feelings and beliefs before making their decisions.

Your attorneys should assume that you are able to make decisions for yourself unless it is clear that you do not have mental capacity. Even if you are losing capacity, your attorneys should help you to make your own decisions as far as possible. They should not conclude that you lack mental capacity simply because you wish to make a decision that they consider unwise.

The attorneys must consider taking advice where appropriate, especially in relation to investment decisions.

You can include instructions and preferences within the LPA as to how your attorneys should manage your affairs. It is sensible to have conversations with your attorneys while you have capacity so that they are aware of your wishes.

Are they difficult to set up?

The process includes completing the LPA forms and going through the signing process. You will need to meet someone known as a Certificate Provider who will check that you understand the power you are giving away, that you have capacity on the day of signing, and that you are not under any undue pressure.

The Certificate Provider can be your solicitor, GP or someone who has known you for two years or more. Once completed and signed, you then need to register the LPA with the Office of the Public Guardian. There is a registration fee to pay (currently £82 per document).

LPAs are an important part of planning for the future and should be considered as early as possible.

What about other parts of the UK?

This article applies to English and Welsh LPAs. Different rules apply in Scotland and Northern Ireland. 

Stephen Horscroft TEP is a Partner in the Private Client Advisory Group at Cripps, Tunbridge Wells, England 

What do I do if I have concerns about the attorney or deputy managing my friend or relative’s affairs?

Posted on By Joanna Pegum
pensive woman

There a number of circumstances where you might become concerned about how someone else’s property and affairs, or health and welfare matters, are being managed on their behalf.

Sadly, there are a number of instances where a person has been taken advantage of by the person they have chosen, or who has been appointed, to manage their affairs once they lose capacity.

Abuse can be physical, financial, verbal or psychological. In the case of an attorney or deputy, the abuse is often of a financial nature. In these circumstances, there are a couple of options.

Report to the Office of the Public Guardian

The Office of the Public Guardian (OPG) is the agency in England and Wales responsible for supporting people who may lose capacity, or who have already lost capacity to make decisions for themselves.

In particular, alongside other public bodies, the OPG has a duty to safeguard any person who has had a deputy appointed by the Court of Protection, or who has appointed an attorney under an Enduring or Lasting Power of Attorney.

If informed of suspected abuse, the OPG may investigate the matter itself or refer it to another body for investigation. Certain forms of abuse may constitute a criminal offence, so if appropriate, you may also wish to alert the police or other services, such as the responsible local authority, of your concerns.

Relevant contact details and guidance can be found here.

Apply to the Court of Protection

If the OPG (or other services) is unable or unwilling to investigate or take action, but you consider that it would be in a person’s best interests for someone else to be appointed to look after their affairs, you may be able to apply to the Court for:

  • The partial or complete revocation of an Enduring or Lasting Power of Attorney, and replacement with a deputy;
  • The removal of a court-appointed deputy, and replacement with an alternative deputy;
  • The appointment of a joint deputy to work alongside an existing deputy; or
  • Directions as to how the attorney or deputy should exercise their powers.

Mark Lindley TEP is a Partner in the private client team at Boodle Hatfield LLP, specialising in disputes relating to wills, trusts and mental capacity

Who should I choose to be my attorney?

Posted on By Louise Polcaro
capacity,attorney

No one knows what’s going to happen in the future, and it can be reassuring to plan ahead to make provision for yourself and your family if anything were to happen to you. Making a will is a useful first step, but you may also consider making a power of attorney in case at any point you become incapable of managing your own affairs through age, illness or accident. In England and Wales, a Lasting Power of Attorney (LPA) enables you to appoint a trusted individual or individuals who, in the event of your loss of capacity, would be responsible for, and would have the legal authority to make, decisions in relation to your property and finances and/or your health and welfare.

Types of Lasting Power of Attorney

In England and Wales there are two types of LPA – Property and Financial Affairs and Health and Welfare – and you can appoint an attorney for either one or both of these.

With a Property and Financial Affairs LPA, your attorney will be responsible for all your financial affairs. This means looking after your money and making sure all your bills are paid. They will be responsible for your investments, property, money and other assets.

With a Health and Welfare LPA, your attorney will be responsible for your welfare. This means looking after your health, personal care, wellbeing and quality of life. They will be responsible for your accommodation and your physical and mental welfare and will be able to make choices about where you live, whether you should receive a particular healthcare treatment, and day-to-day things like diet, dress and daily routine.

Who should I choose?

With such important responsibilities, it is vital to consider your choice of attorney very carefully.

Your attorney must be at least 18 years old and can be a family member, spouse/partner or friend. Alternatively (or additionally) you can engage a qualified professional such as a solicitor to act as your attorney.

Some key considerations are as follows:

  • Can you trust them to act in your best interests?
  • How well do they know you? Do they understand your wishes and values?
  • Are they capable? (How well do they look after their own affairs?)
  • Do they understand the responsibility of the role?

You should discuss the various responsibilities with your chosen attorney to make sure they understand what you are asking of them and they are happy to be appointed.

Can I choose more than one attorney?

Being an attorney can involve making some difficult decisions and may be quite time consuming so you may wish to appoint more than one attorney to spread the responsibility. If you choose to appoint more than one attorney, you need to decide whether you want each individual attorney to have the power to act separately (make decisions on their own) or jointly (where all of your attorneys have to agree on a decision).

You can also nominate other people to replace your attorney or attorneys if at some point they can’t act on your behalf anymore.

Where can I get more information?

You can find out more about LPAs in our leaflet, Why Make a Lasting Power of Attorney? You may wish to discuss your requirements with a qualified professional, who can talk you through the various considerations.

You can also find extensive information about how to make and register an LPA in this guide, produced by the Office of the Public Guardian.