Can I still use my enduring power of attorney?

An excerpt from Lawpack's Power of Attorney Kit.

On 1 October 2007 Enduring Powers of Attorney (EPAs) were replaced with Lasting Powers of Attorney (LPAs) in England and Wales.

Although you cannot make any changes to an existing EPA or make a new one, you can still register an EPA should you become mentally incapable.

What is the difference between an EPA and an LPA?

Unlike a LPA, an EPA becomes effective as soon as it's created and you don't need to register an EPA to use it. But an EPA must be registered if the person who has granted the Power (called the 'Donor') loses, or is losing, capacity to deal with their property and affairs.

It's also not possible to delegate decisions relating to a person's personal welfare using an EPA. An existing EPA can only relate to a person's property and affairs.

How do I register an EPA?

The person you have given the power to look after your affairs (called the 'Attorney') will need to register your existing EPA with the Office of the Public Guardian if they believe that you are, or are becoming, mentally incapable. It's down to the Attorney's judgement as to when this happens. The Attorney may need to take medical advice about whether you are mentally incapable, but your Attorney doesn't need to provide proof of your incapacity to register the EPA.

However, before applying to register the EPA, the Attorney (or Attorneys if you have appointed more than one) must give notice of the proposed registration to you and certain close relatives of yours. To do this, the Attorney must complete the Form EP1PG 'Notice of intention to apply for registration of an EPA' (which is available to download from our website when you purchase our Power of Attorney Kit).

Notice must be given by the Attorney(s) to at least three of your relatives.

The Attorney will need to complete Form EP2PG to register the EPA. This form is also available to download from our website when you purchase our Power of Attorney Kit, plus guidance on the notification and registration process in our expert Guidance Manual.

How do I revoke (cancel) an existing EPA?

You may want to replace your unregistered EPA with a Lasting Power of Attorney Property and Affairs (LPA PA). You can revoke an unregistered EPA at any time while you have the mental capacity to do so, but if the EPA has already been registered, it cannot be revoked except by permission of the Court of Protection. The Court will need medical evidence that you are mentally capable, or you were mentally capable at the time, when you revoked the EPA.

If you do want to revoke an unregistered EPA, it's best to consult a solicitor who will draft a Deed of Revocation for you.

Find out more on how you can register an existing EPA (with Forms EP1PG and EP2PG included) with Lawpack's Power of Attorney Kit.

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Published on: October 25, 2010

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