What is an Enduring Power of Attorney (EPA)?
Since 1st October 2007, it has not been possible to create a new EPA but any power created before this date can still be used.
An EPA gives authority to the attorney to manage all the donor's property and financial affairs or it may only empower the attorney to deal with specific things.
Unlike a Lasting Power of Attorney (LPA), the EPA does not need to be registered unless the attorney believes that the donor is or is becoming mentally incapable (within the meaning of the Mental Capacity Act 2005). The attorney would then have to apply to the Office of Public Guardian (OPG) to register the power before being able to use it.
Once the power is registered, the donor cannot revoke it without confirmation from the Court and the attorney cannot disclaim it without notifying the OPG. The donor cannot vary the scope of the authority granted. Please note, that the donor of an EPA can revoke the power at any time before they lose capacity (when the power is not registered).
The Court of Protection (with the OPG) deals with the protection and management of the property and affairs of any person suffering from a mental disorder and has jurisdiction to register and cancel EPAs, determine questions regarding the meaning or effect of an EPA, give directions to attorney concerning their handling of the donor's affairs, require the attorney to provide information, give any consents or authorisations which may be required and if appropriate; relieve the attorney from any liability incurred through breach of their duties.
The Attorney must involve the Donor in decision making whenever possible and only make decisions on the Donors' behalf which are in their best interest. The EPA will end when the Donor dies.
A key difference between the EPA and an LPA is that the former is solely for financial decisions. From 1st October 2007, the LPA replaced the EPA as the primary way of appointing an attorney to act on behalf of a person in the event of loss of mental capacity. An LPA can cover decision making for the Donor's health and welfare as well as property and finances.
