Is my Enduring Power of valid?

I have an Enduring Power of Attorney. Is it still valid? Does it need to be registered?

Prior to the 1st October 2007 the only power of attorney you could make to appoint people to assist you if you lost mental capacity was called an Enduring Power of Attorney (or an EPA).

Overnight the law changed and from the 1st October 2007 signing an EPA was no longer legal. Instead, if someone wanted to appoint attorneys to help should they lose capacity, they had to sign a Lasting Power of Attorney (LPA).

But do not fear; any EPA correctly signed before 1st October 2007 remains perfectly valid. It will allow your attorneys to assist you with your property and financial affairs if you lose capacity.

That said, there are a couple of matters that you may like to discuss with us if you signed an old style EPA:

  • Check the document. Did you specify that your attorneys can act for you both when you do and do not have capacity? Either way, review this. Sometimes clients are sure that they would only want attorneys to help if they lose mental capacity, forgetting that help can be invaluable should you suffer from a physical incapacity.
  • Review the document. Are the attorneys you chose then still the attorneys you would want to help you now?
  • The powers conferred on attorneys by an EPA are limited to dealing with your property and financial affairs. We would recommend that you sign a Health and Welfare LPA to sit alongside your EPA; since the introduction of LPAs in 2007 it has been possible to appoint Health and Welfare attorneys as well as Property and Financial affairs attorneys. A Health and Welfare attorney can speak to your medical advisers and social workers on your behalf if you lose capacity, and make decisions such as where you should live, who should visit you and even the kind of medical intervention you have at the end of your life.

Help! My EPA is not registered

We have spoken to clients who have heard that powers of attorneys need to be registered to be valid. That is not always the case. Lasting Powers of Attorneys do have to be registered before they can be used by attorneys but Enduring Powers of Attorneys are valid from the date they were signed. That said, if you are an attorney acting for someone under an EPA you have a duty to register the EPA if the person you are acting for is, or is becoming, mentally incapable.

If you fail to register the EPA of someone who is mentally incapable but you continue to act for them, then you are acting outside of the scope of the EPA and the Office of the Public Guardian may intervene.

To discuss EPAs or LPAs, or if you are uncertain whether you need to register an EPA, please call Purely Probate on 01458 850 146 for advice.