The Eric Whitehead Partnership

By now, most people will be aware that Enduring Powers of Attorney (EPAs) were replaced by Property and Affairs Lasting Powers of Attorney (LPAs) in October 2007, but that any existing EPA executed before October 2007 remains valid.

What many people do not realise, however, is that if an Attorney appointed under an EPA has reason to believe that the Donor (ie the person who appointed the Attorney under the EPA) has lost or is losing mental capacity then the Attorney is under a legal duty (pursuant to paragraph 4 of the Enduring Powers of Attorney Act 1985) to apply to register the EPA at the Office of the Public Guardian (OPG) in Birmingham.

That process involves first notifying both the Donor and the Donor’s closest relatives of the proposed application to give them all the opportunity of objecting to the registration.  This is done by each party being served with a prescribed form known as a form EP1PG.  Once this has been done, the Attorney must, within 10 days, make the application itself in a prescribed form known as a form EP2PG.  This form, along with the original EPA, is sent to the OPG, together with the registration fee, which is currently £120 (although this fee can be reduced or avoided altogether if the Donor is in receipt of certain state benefits or if their gross annual income is below certain levels).

If an Attorney makes any false statements in the application then, in theory, they can be imprisoned for up to two years, fined, or both.

Once the OPG has received all of the paperwork it will wait for a set period of time to see if any objections are received.  If they are not, the EPA will be registered and returned to the Attorney.  The registration process as a whole takes at least three months.

Registration of an EPA brings about two fundamental changes to an Attorney’s role.  In the first instance, the Attorney will ultimately be answerable to the OPG for his or her actions.  Secondly, neither the Attorney nor the Donor will be able to bring the EPA to an end without the say so of the OPG.