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Enduring Powers of Attorney- When is it time to register?
What is an Enduring Power of Attorney?
Both Enduring Powers of Attorney ("EPA") and Lasting Powers of Attorney ("LPA") are documents that allow a person (the "Donor") to appoint a friend, family member or authorised body to be their Attorney. The role of the Attorney is to help the Donor with their personal affairs. The EPA was introduced in 1985 and allowed a named Attorney to help the Donor with their financial decisions. EPAs were then replaced by LPAs in 2007. There are two types of LPA, one for "Property and Finance" and one for "Health and Welfare". Any EPA whether, registered or not, that was prepared before 2007 and validly executed, is still a valid document now.
When can you use an Enduring Power of Attorney?
Unlike LPA documents, the EPA document can be used by the Attorneys before it has been registered, while the Donor still has mental capacity. The Donor can give authority for their Attorneys to make use of their EPA. An EPA must be registered by the Attorneys if the Donor loses mental capacity. This requirement is sometimes overlooked by Attorneys. The registration process can cause delays.
How do you register your Enduring Power of Attorney?
The registration process for an EPA is more onerous than the registration of an LPA, with the requirement to formally notify the Donor and a minimum of 3 specified family members in the below hierarchy. If the notification falls to the next level in the hierarchy, then all members of that level will also need to be notified. Additionally, if there are other Attorneys appointed "joint and severally" who are not participating in the registration, then they too will need to be notified. It is not necessary for all the Attorneys to register the EPA and it does not change their entitlement to act as Attorney.
Once the required persons have been notified, an application can be made to the Office of the Public Guardian ("OPG") for registration.
The order in which persons need to be notified are as follows:
1. Donor’s husband, wife or civil partner;
2. Donor’s children (including adopted children but not stepchildren);
3. Donor’s parents;
4. Donor’s brother and sisters (including half brothers and sisters);
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 brothers and sisters);
8. Donor’s nephews and nieces (children of the Donor’s half brothers and sisters);
9. Donor’s aunts and uncles (who are full brothers or sisters of a parent of the Donor); and
10. Donor’s first cousins (children of the Donor’s aunts and uncles who are full brothers and sisters of a parent of the Donor).
The number of persons to notify can be onerous, particularly in large families. If there are not enough family members to satisfy the requirements of notification an explanation will need to be given to the OPG. Once each person has been formally notified, an application can be submitted (along with the original EPA) to the OPG. Unlike LPAs, EPA registration with the OPG takes significantly less time, than the 20+ weeks it is currently taking for the registration of LPAs. An EPA can often be registered within 5-6 weeks of the notices being sent out, unless any objections are raised.
Should you prepare an LPA instead?
There is no pressing "need" to prepare an LPA instead of an EPA. For matters involving property and finance, an Attorney has the same power under an EPA as they would under an LPA, it is simply the registration that is different. Some people may wish to upgrade their EPA to an LPA so that they can make better provision in the more detailed document and embark on the remigration process immediately.
It is also worth remembering that an EPA only covers property decisions, whereas Attorneys can be appointed for health under a health and welfare LPA. If you have strong health and welfare wishes you should definitely consider a health and welfare LPA.
Contact us
Please contact one of our dedicated Private Client team members to talk about your EPA or LPAS to ensure all of your needs are covered.