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 is an Enduring Power of Attorney (EPA) and how is it used?

Posted on By Joanna Pegum
Older man and woman sit by paperwork with a calculator

It is good practice for people to set up a legal safeguard so that, if they lose mental capacity in future, a trusted person can look after their affairs.

In England and Wales the Lasting Power of Attorney (LPA) was introduced in 2007, replacing the older Enduring Power of Attorney (EPA), however EPAs that were signed before 1 October 2007 can still be used.

If you have been appointed as an attorney under an EPA, you will be responsible for helping the person, known as the donor, to make decisions in relation to their:

  • Money and bills,
  • Bank and building society accounts,
  • Property and investments, and
  • Pensions and benefits.

Acting as an attorney is a significant responsibility, and it is important to understand your duties and be familiar with the principles to apply when making decisions.

When can you act?

You can act for the donor straightaway using an unregistered EPA, provided that they still have mental capacity. If the donor has lost, or is losing, capacity to make financial decisions, you must register the EPA with the Office of the Public Guardian before you can continue to act.

While the donor has mental capacity you should act at their direction and with their consent.

The banks, building societies and organisations where the donor holds funds will require a certified copy of the EPA, and identification from you, before they will allow you to deal with an account.

How do you know if the donor lacks capacity?

This is a difficult question because capacity can vary from day to day. The law states that the donor lacks capacity if they are unable to make a decision due to an impairment with the functioning of their mind which means that they cannot understand, retain or weigh the necessary information.

The ability to make decisions is both time and issue specific. The donor may have capacity to make a simple decision about paying a bill but not a complex investment decision.

You should not consider the donor to have lost capacity just because you disagree with a decision they have made.

What principles should you follow?

You should assume that the donor is capable of making a decision unless shown otherwise and you should take all practical steps to help the donor make the decision themselves. All decisions must be made in the donor’s best interests and in a way that least restricts their rights and freedoms.

You should take account of any past wishes and feelings of which you are aware. Make sure you keep records of how you reached your decisions, in case you are challenged in the future.

How should you make investment decisions?

You will need to obtain and follow proper advice, ideally from a qualified financial advisor. One of your duties is to review the suitability and diversity of their investments. It is essential that you keep the donor’s assets separate from your own.

What else should you bear in mind?

Unless you are a professional attorney, you will not be paid but you can recover reasonable expenses incurred when carrying out your duties.

Take advice before making gifts or loans from the donor’s assets, or selling assets below their true value.

Finally, you will need to keep accounts of the donor’s assets, income and spending. The Office of the Public Guardian and the Court of Protection can ask to check these at any time.

What about other parts of the UK?

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

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

Should I change my Enduring Power of Attorney to a Lasting Power of Attorney?

Posted on By Joanna Pegum
couple with computer

In England and Wales, Enduring Powers of Attorney (EPAs) were replaced by Property and Financial Affairs Lasting Powers of Attorney (LPAs) in 2007, following the introduction of the Mental Capacity Act 2005 (MCA 2005).

Reasons for the change included:

• There was no guarantee that the person who made the EPA had sufficient capacity;
• As registration was only needed when the attorney believed that the person making the EPA had become (or was becoming) mentally incapable of manging their affairs, EPAs were open to abuse from an unscrupulous attorney; and
• The EPA did not allow for the delegation of health and care decisions.

What is the procedure for putting in place an LPA?

Before being able to decide whether you should change your EPA for a Property and Financial Affairs LPA, you need to consider the new procedure for putting in place an LPA, which is as follows:

• Fill in the LPA form and sign it.
• Choose someone to sign as a ‘Certificate Provider’. The Certificate Provider must check the MCA 2005 conditions are satisfied must check the MCA 2005 conditions are satisfied and confirms that the person making the LPA has capacity, understands the LPA, and is not creating it because of undue influence or pressure. The Certificate Provider can be someone who has known the person making the LPA for at least two years or someone with the appropriate professional skills, such as a GP or lawyer.
• Ask the attorney(s) to sign the LPA form.
• Register the LPA with the Office of the Public Guardian. This last step costs £82 (unless you qualify for a fee exemption or remission) and the LPA needs to be registered before the attorney(s) can act. The LPA does not have to be registered immediately, but it is sensible to do so, to avoid any delays.

Should I change my EPA to an LPA?

So should you change your EPA to a Property and Financial Affairs LPA? In general, the answer to this question is that there is no ‘need’ to change an EPA that has been competed correctly, but there may be some virtue in doing so.

The more in-depth LPA form directs you to think through matters that were not addressed, or were not even an option, within the EPA form, such as:

• Naming backup attorney(s);
• Stating instructions to the attorney(s) – be it positive or negative, eg ‘you must do’ or ‘you cannot do’;
• Expressing preferences to the attorney(s) – general thoughts and wishes as to how you would like your financial affairs conducted; and
• Requesting that notice is given to someone when registration takes place, if registration does not take place immediately.

What about Health and Welfare LPAs?

This article focuses on EPAs and their replacement, Property and Financial Affairs LPAs. But don’t forget that you can also put in place a Health and Welfare LPA to give your attorney(s) power to take health and social care decisions on your behalf.

You can find more information on LPAs in the leaflet ‘Why make a Lasting Power of Attorney?’

Philip Warford TEP is Managing Director of Renaissance Legal, Brighton, UK

How do I make an Enduring Power of Attorney?

Posted on By admin
older man

While the benefits of drawing up a will are widely known, making provision in advance for the possibility of you becoming incapable of managing your financial affairs is less so.

It is, however, very important to think about this, and becomes increasingly more so as the risk of mental incapacity grows through age, illness or accident.

Provisions for this vary within the various parts of the UK, either in the form of an ‘Enduring’ or ‘Lasting’ Powers of Attorney.

In Northern Ireland, by making an Enduring Power of Attorney (EPA), you can appoint one or more people to act on your behalf in relation to all of your financial affairs in the event that you are unable to do so yourself in the future.

The EPA can include restrictions if you wish, but generally it is advisable to ensure that the attorneys can deal with all of your assets if they need to, including giving them the power to sell your home. The attorneys would be able to manage your assets and income, and deal with any expenses that you have, such as nursing care fees.

Just in case

An EPA should be viewed as being like an insurance policy, in that it is hoped that it will never be needed, but would nevertheless be available should the worst happen.

You should make an EPA when you are still healthy and capable, rather than waiting until capacity has become an issue.

How would an EPA work?

In the event of a loss of capacity, the EPA would need to be registered with the High Court. Registration is not required until your attorney believes that you are no longer capable of managing your own affairs. As a safeguard, notice must be served on you and your next of kin prior to your EPA being registered. Should you or your next of kin feel that you are still capable of managing your own affairs, you may object to registration at that time.

Is it expensive?

Creating an EPA is relatively inexpensive. And you should bear in mind that if you lose capacity without having made an EPA, your next of kin or carer may need to make an application to the High Court to be appointed as a ‘Controller’ instead. As with all court applications, this is a more expensive procedure that is best avoided. Controllers are subject to the continuing scrutiny of the court and must submit annual accounts for approval together with payment of an annual court fee. In practice, neither of these obligations apply to attorneys acting under an EPA.

What about Lasting Powers of Attorney?

In England & Wales, EPAs have been replaced with ‘Lasting Powers of Attorney’ (LPAs), which enable people to appoint attorneys both in relation to their financial affairs and ‘health and welfare’ issues such as those around medical treatment and long-term care.

Northern Ireland is due to follow suit as a new Mental Capacity Act was introduced in March 2016, but this has yet to be implemented. Any EPAs made now will still be valid even after the act comes into operation as, unlike in England & Wales, they are being retained alongside LPAs for the time being.

Michael Graham TEP is Head of the Private Client Department at Cleaver Fulton Rankin, Belfast, Northern Ireland

Will my power of attorney be recognised abroad?

Posted on By admin
anxious man with suitcase,abroad,foreign,power of attorney

If you are moving abroad, you should consider whether any planning you have undertaken will be valid in your destination.

If you have taken the step of setting up a Lasting Power of Attorney (LPA) or an Enduring Power of Attorney (EPA), you may have to revisit it if you decide to move abroad to work or to retire, or if you own property or assets overseas.

In any of these cases you will need to take specialist legal advice to make sure that the right documentation is in place in the event that you lose capacity.

What problems could arise?

You should bear in mind that not all jurisdictions have the same approach to mental capacity. Depending on the particular circumstances, a number of questions may arise:

  • Which country’s courts will have the jurisdiction to be able to make orders in respect of your property and finances?
  • Will the jurisdiction you are moving to be able to recognise and enforce either:
    • the orders of the court of your jurisdiction; or
    • an LPA or EPA that is valid in your jurisdiction?

If you have been well advised, then you will hopefully have signed a similar power of attorney document in the foreign jurisdiction where the property or money is situated. It is much simpler to be able to deal with assets abroad using an equivalent power of attorney in that other jurisdiction.

If you haven’t taken the step of having another foreign power of attorney in place, then if your LPA or EPA has been registered with the relevant authorities, in some circumstances it may be acceptable to be used in the foreign jurisdiction. Foreign advice would have to be taken as to its acceptability or otherwise. Even if the LPA or EPA is recognised abroad, there may still be local requirements that will have to be met before it is used. Lawyers or notaries in those jurisdictions would have to give advice as to what is required.

In some countries, the LPA or EPA may have to be translated into the local language in order for it to be used and some jurisdictions will require an ‘apostille’ to be affixed to it by the Foreign Commonwealth office so that it can be used. This is a certificate attached to the document that confirms that the signature, seal or stamp on the document is genuine.

Planning ahead

If you are thinking of moving abroad to either work or retire, then you should consider taking advice on what would happen to any assets that you own abroad, should you subsequently lose your mental capacity. It is always advisable to plan ahead as no one knows what the future may hold. In all circumstances where advice or the law of a foreign jurisdiction is needed, it should be obtained from a legal practitioner who is suitably qualified in that jurisdiction.

The test for mental capacity differs throughout various foreign jurisdictions. They each have their own approach in the way that they define mental capacity as well as the various forms of representation that can be used like an LPA or EPA. Sometimes these are referred to as continuing or durable powers of attorney in other jurisdictions. The differing powers can be revoked by incapacity, marriage or divorce, so specialist advice will always need to be taken in respect of the jurisdiction in which the relevant power is to be used.

TEPs are well qualified to give specialist advice in these complex interjurisdictional situations. There are over 20,000 STEP members across the globe, so there is always someone who can help with the difficult cross-border issues that can arise.

This article does not apply to health and welfare issues that may arise if you are moving or retiring abroad as there may be additional or different issues that may arise. Again, specialist advice will be needed.

Patricia Wass TEP