Enduring Power of Attorney

Enduring Power of Attorney (an "EPA") is a power of attorney given by someone at a time when they are in control of their mental faculties, but which can continue in force even after the donor of the power has lost those faculties. The Attorney is able to act on behalf of the donor, e.g. signing cheques or otherwise managing his financial affairs, from the date the EPA is executed, provided there are no restrictions placed on its operation and that this is what the donor wishes.

• It enables the donor to choose the person or persons he would like to handle his affairs after the onset of mental illness, which would not otherwise be possible once that had happened. If there is no EPA in force, the loss of mental capacity often results in the need for the appointment of a Receiver by the Court of Protection, which can be an expensive procedure.
• The donor should choose as his Attorney someone he trusts completely, for example a member of his immediate family, a close friend or a professional adviser. One or more Attorneys can be appointed, though it is unusual to have more than two. If two are appointed, they can either act "jointly", which means both must always sign documents, or "jointly and severally" in which case either one or the other can sign.
• The donor should consider carefully what powers he wishes to give his Attorney, since if there are no restrictions he can sign cheques, deal in Stock Exchange securities and even sign a Transfer for the sale of the donor's house. It is possible in the EPA to place any limitations on these powers, such as signing cheques only, or specifying that the Attorney may only act after the donor has become mentally incapable, a condition that is frequently used.
• When the donor loses his mental capacity, the Attorney should make application to the Court of Protection for "registration" of the Power. The donor and his nearest relatives are given notice of this, and they are able to object to registration on various grounds. An EPA can be revoked at any time, but only prior to registration.
• The EPA has to be made in the statutory prescribed form. It must be signed by the donor first, and then by the Attorney(s), and all signatures have to be witnessed. The document should always be kept in a safe place.

CE has considerable experience in dealing with all aspects of the EPA, and if you wish we will be happy to prepare one for you or discuss them generally.

N.B. These will be replaced by Lasting Powers of Attorney in October 2007. At that time, while existing EPAs will remain valid, it will not be possible to make new ones. If you are interested in having an EPA, we strongly recommend that you deal with this before October 2007.