Making an Enduring Power of Attorney (EPA)
A Quick Guide
An EPA
- must be set out in the legally required format, and signed
before 1st October 2007.
If you have an existing EPA,
either registered or unregistered, it can still continue to be
used. If, at some time you are no longer able to make financial
decisions for yourself then the EPA will need to be registered
before it can be continued to be used.
If you have already made an EPA and you
still have capacity, you can either replace it with a new property
and affairs LPA or you can keep the existing EPA.
Decisions the Attorney(s) can make
Unless you put limitations on the EPA, the Attorney(s) can make
exactly the same types of decision about your property and
financial affairs as you can when you have the mental capacity to
do so. But the Attorney(s) cannot make decisions about your
personal welfare.
When the instrument comes into operation
An EPA comes into operation as soon as it has been completed and
signed by you, your Attorney(s) and the witnesses; unless you put
in a limitation to say that the EPA will not come in to operation
until you lose mental capacity or that it will start from a future
specified date.
If you lose mental capacity in the future, your EPA will remain
legally effective as long as your Attorney(s) registers it.
The duty of the Attorney(s)
With an EPA your Attorney(s) have a duty to apply to the Court
of Protection to register the EPA if they have reason to believe
that you have lost or are losing the mental capacity to make the
necessary decisions for yourself.
Under an EPA your Attorney(s) have only a common law duty to act
in your best interests.
The Donor’s ability to make decisions
Until your EPA is registered, both you and Attorney(s) have
equal authority to make decisions about your property and financial
affairs, If the EPA is registered, in theory you can still make
decisions about your property and financial affairs, if you are
capable of making them at the time.
Registering the power
It is your Attorney(s) duty to apply to the Court of Protection
to register your EPA when they have reason to believe that you have
lost or are losing the mental capacity to make the necessary
decisions for yourself.
Before applying to the Court, the Attorney(s) must give written
notice of the application to:
- you as the Donor,
- any co-Attorney(s) and
- at least three of your closest relatives.
Any of those who receive notice of the application to register
can object to the registration.
Revoking (cancelling) the power
As long as you have the mental capacity to do so, as the Donor
you can revoke or cancel an unregistered EPA at any time without
the need to make an application to the Court of Protection.
The Court of Protection must confirm any revocation or
cancellation of a registered EPA. Before such a decision is made,
as the Donor you will need to satisfy the Court that you understand
who the Attorney(s) are and the powers you have g them. You will
also need to show the Court that you understand the effect that
cancellation will have and why the EPA needs to be cancelled.
An EPA registered or unregistered is also revoked if you or the
Attorney(s) are made bankrupt.
The information provided here is only a simple outline and
for more detailed information you should read the Office of Public
Guardian guidance booklet about LPAs.
This document/publication/leaflet about ‘Making a EAP (Quick
Guide’ can be made available in a range of community languages,
large print, Braille, on tape, electronic and accessible formats
from the Information Officer (information_officer@bathnes.gov.uk)
- Tel (01225 477983)
Minicom (01225 477043) |
