An Enduring Power of Attorney (EPA) is a legal document enabling a designated person (known as an ‘attorney’) to manage the property and financial affairs on behalf of another person (known as a ‘donor’).
Only EPA’s made and signed before October 1st 2007 are still valid and can be used. A Lasting Power Of Attorney (LPA) is now used in place of the EPA, as an LPA can offer more scope for protection and provide alternative options.
What does an Enduring Power of Attorney (EPA) Cover?
An EPA covers decisions about your property and financial affairs, and it comes into effect when you either lose mental capacity or you authorise someone to act on your behalf.
Do you need help to make decisions about someone’s property/money if you are appointed as an enduring power of attorney ( EPA )? Contact one of our Power of Attorney Solicitors to get the best legal advice!
Mental Capacity – What is it?
Mental capacity refers to a person’s ability to make sound decisions and to be able to communicate those decisions when they need to be made.
Some examples of not having mental capacity can include:
- Degenerative diseases such as Parkinson’s
- Late-stage Alzheimer’s or Dementia
- Being rendered unconscious due to an accident or illness
What are the roles of an attorney?
The requirements that must be adhered to by the attorney are set out within the EPA. The responsibilities include:
- Always acting in the best interests of the donor
- Not using their position to take financial advantage of the donor’s estate
- Not using their position to benefit in any way from the donor
- To keep all finances (their own and the donors) separate and to record movement and spending of all finances
- To adhere to the understanding and regulations surrounding mental capacity
What if I already have an Enduring Power of Attorney (EPA)?
If you have an existing EPA made before the October 1st 2007, then this can continue to be used, despite whether it has been registered or remains unregistered.
The EPA can be changed over to an LPA (Property and Financial Affairs). However, the person in question (donor) would still need to have the full mental capacity to make these amendments.
Differences between an EPA and an LPA?
Even though an EPA can still be used, you may want to review whether this remains the best option for you. On the other hand, an LPA can offer more flexibility and comes with additional benefits.
The main differences are as follows:
The Appointment of Attorneys
EPA: An EPA only allows you to appoint one attorney to act independently or several attorneys. However, they would all have to make any decisions together jointly.
LPA: An LPA allows you to change or remove attorneys and offers more flexibility about them either acting severally or jointly.
EPA: On setting up an EPA, it often included mental capacity restrictions. Important to note that an EPA can only come into effect once mental capacity has been lost.
LPA: The Lasting Power of Attorney (LPA) has more flexibility and can be voluntarily actioned by the donor. For example, when the donor still retains mental capacity but needs assistance due to a lengthy hospital stay or frailty.
EPA: An EPA can only be used in respect of the property and financial affairs. There is no option to nominate an attorney to look after health and wellbeing upon loss of capacity.
LPA: There are two types of Lasting Power of Attorney (LPA) – one for Health and Welfare and a separate one for Property and Financial Affairs. These can either be taken out singularly, or you can obtain both if necessary.
When should an Enduring Power of Attorney (EPA) be registered?
The attorney is the person responsible for registering the EPA. This is only done once an attorney determines that the donor has lost mental capacity and is unable to manage their own financial affairs.
By registering an EPA, this gives the attorney full accountability for managing the property and financial businesses of the donor. However, if the donor still feels that they have some capability, then the attorney(s) can decide whether partial involvement will be allowed. This is at the discretion of the designated attorney(s).
What about EPA’s and Wills?
A donor can make a will; however, if a will is drawn up following the registration of an EPA, this can leave the estate open to contest.
A will made following the activation of an EPA means that there could be concerns surrounding the donor’s mental capacity at the time of dividing any assets and allocating beneficiaries. This could raise questions about their competency to make a legal and binding contract and any decisions made about their estate upon death.
Questions about mental capacity can be difficult to resolve once a donor has died, and therefore it is recommended that a solicitor be consulted if a will or codicil is needed after an EPA has been registered.
Can an Enduring Power of Attorney (EPA) be cancelled?
On the provision that the donor has the mental capacity to do so, then they are permitted to rescind their EPA at any point prior to registration.
If the EPA has been registered, then it will need to be revoked. This can only be done through the courts and via a form known as a ‘Deed of Revocation’.
Again, legal assistance or consultation is recommended for this process. Moreover, it is also worth considering whether the EPA should be replaced with an LPA at the same time.
What happens when the donor dies?
Upon the death of the donor, the EPA automatically terminates. It is the responsibility of the attorney(s) to return the original EPA to the Office of the Public Guardian (OPG), along with a death certificate, as soon as possible.
There will still be estate matters to deal with following the death of a donor. The attorney will need to refer to the nominated solicitor, District Probate Registry or relevant professional body for further advice on how to proceed.
If you need help on Power of Attorney, find a specialist Lasting Power of Attorney solicitor.
Related article: Protecting your possessions with a Power of Attorney
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