Enduring Power of Attorney
Q: Why do I need to register the Enduring Power of Attorney?
A: In order for an Enduring Power of Attorney to be valid after the Donor has become mentally incapable it must be registered. Registration must take place as soon as the Attorney sees evidence that the Donor is becoming mentally incapable.
Q: How do I register an Enduring Power of Attorney?
A: You must use the prescribed forms EP1 Notice of Intention to Apply for Registration and EP2 Application for Registration.
Q: When should I register the Enduring Power of Attorney?
A: The Attorney must register the Enduring Power of Attorney by using the EP1 and EP2 registration forms when he/she sees evidence that the Donor is becoming mentally incapable.
Q: What is Form EP1?
A: Form EP1 is the form used to provide notice to relatives that there will be an application to register the Enduring Power of Attorney.
Q: Do you require medical proof to register the Enduring Power of Attorney?
A: No medical evidence is required to register the Enduring Power of Attorney (unless the Enduring Power of Attorney specifically says that you do) however, should any of the Donor's relatives object to the proposed registration, the Court of Protection may require medical evidence supporting the Donor's mental incapacity.
Q: How should the Attorney notify the Donor and the Donor's relatives that he/she intends to register the Enduring Power of Attorney?
A: The Attorney must use the prescribed form EP1 Notice of Intention to Apply for Registration in order to notify the Donor and the Donor's relatives. The notification can be sent by first class post for relatives. However, notification to the Donor must be made in person (even if the Donor lacks the capacity to understand the notification). All notices must be served within 14 days of each other.
Q: What if there is more than 1 Attorney?
A: In order for the EP1 to be valid, joint Attorneys must serve the form jointly. Attorneys who are acting jointly and severally should give notices jointly when they all wish to register the Enduring Power of Attorney. If only 1 of the Attorneys acting jointly and severally gives notice, then the other Attorneys must also be sent the EP1 form. If the notices do not list the names of all Attorneys acting jointly and severally, then registration will occur but will be limited to the Attorneys listed on the form.
Q: Who should be notified?
A: The Donor and at least 3 relatives of the Donor must be notified. Relatives are grouped into classes and placed in order of priority. If the Donor wishes to notify a relative in a certain class, then he or she must also give notice to all members of that class. The order in which relatives must be notified are:
|First Priority:||The Donor's husband, wife or civil partner|
|Second Priority:||The Donor's children (including adopted children, but not stepchildren)|
|Third Priority:||The Donor's parents|
|Fourth Priority:||The Donor's brothers and sisters and half-brothers and half-sisters|
|Fifth Priority:||The widow or widower of the Donor's child|
|Sixth Priority:||The Donor's grandchildren|
|Seventh Priority:||The children of the Donor's brothers and sisters (including half brothers and half-sisters)|
|Eighth Priority:||The Donor's uncles and aunts (but not if they are only related by marriage)|
|Ninth Priority:||The children of the Donor's uncles and aunts|
|Tenth Priority:||The Donor's first cousins|
For example if the Donor has a husband, 4 daughters and 1 living parent then the Attorney must provide notice to the husband and the four daughters.
Q: What if giving notice will upset the Donor?
A: The Court of Protection may consider removing the notice requirement for the Donor if you submit medical proof demonstrating such notice would cause harm or distress to the Donor.
Q: Which individuals are not entitled to notice?
A: The following individuals do not need to be notified:
- any relative whose name or address is unknown to the Attorney;
- any relative who is less than 18 years old;
- any relative who is mentally incapable; and
- any relative who is also acting as an Attorney (an Attorney who is also a notifiable relative is deemed to have been notified and counts as 1 of the 3 relatives who have been notified)
Q: What is the Form EP2?
A: The EP2 is the form used to apply for registration of an Enduring Power of Attorney.
Q: Who can apply for registration?
A: Only the Attorney appointed by the Enduring Power of Attorney can apply for registration. If two or more Attorneys were acting jointly then all the Attorneys must apply for registration together. Attorneys who were acting jointly and severally do not have to apply together however only those Attorneys who do apply will continue to have powers.
Q: What does it cost to register the EP2?
A: There is a fee of £120 to apply to register an Enduring Power of Attorney however upon written request fees may be lowered or waived if the Attorney(s) are experiencing financial hardship.
Make the cheque payable to "The Public Guardianship Office". For more information on fees contact the Public Guardianship Office.
Q: When must I send the Application?
A: You should send the application within 10 days of serving your last EP1 notice.
Q: When will the Public Guardianship Office register the Enduring Power of Attorney?
A: Registration of the Enduring Power of Attorney will only happen if the Public Guardianship Office receives no objections to the registration. The Public Guardianship Office will wait at least 35 days have passed since the last EP1 notice has been sent. If no objections have been made by the Donor's relatives during the 35 day period, the Enduring Power of Attorney will be registered.
Q: What objections can be made?
A: The grounds on which the Donor's relatives can object are:
- the power purported to be created by the instrument is not valid as an enduring Power of Attorney;
- the power created by the instrument no longer subsists;
- the application is premature because the Donor is not yet becoming mentally incapable;
- fraud or undue pressure was used to induce the Donor to make the power; and
- the Attorney is unsuitable to be the Donor's attorney (having regard to all the circumstances and in particular the attorney's relationship to or connection with the Donor).
Q: How are objections processed?
A: A person must submit the following information to the Court of Protection in order to object to the registration of an Enduring Power of Attorney:
- the name and address of the Objector;
- the name and address of the Donor if he is not the Objector;
- any relationship of the Objector to the Donor;
- the name and address of the Attorney; and
- the grounds for objecting to registration of the enduring power of attorney.
If the Objector and the Attorney cannot resolve their disagreement or if the Court does not have enough evidence to make a decision, the Court may allow for a hearing for the matter to be resolved. For more information on objections click here.
Q: Can the Enduring Power of Attorney be cancelled after it has been registered?
A: The Court can cancel the registration or end (revoke) the EPA if a successful application for cancellation is made, and in certain other circumstances. A Donor can also end a registered EPA if the Court agrees and is satisfied that the Donor is mentally able to make this decision.