Capacity to create or revoke an enduring power of attorney
Capacity to create or revoke an enduring power of attorney

The following Private Client guidance note provides comprehensive and up to date legal information covering:

  • Capacity to create or revoke an enduring power of attorney
  • Enduring powers of attorney
  • The common law presumption of capacity
  • Capacity to create an enduring power of attorney
  • Capacity to revoke an enduring power of attorney

Enduring powers of attorney

Although it has not been possible to create an enduring power of attorney (EPA) since 1 October 2007 when the Enduring Powers of Attorney Act 1985 (EPAA 1985) was repealed by the Mental Capacity Act 2005 (MCA 2005), EPAs created before that date will not be revoked by the subsequent mental incapacity of the donor but remain available for use by the attorneys subject to being registered with the Office of the Public Guardian. Questions may still arise concerning the issue of the necessary capacity to create or revoke an EPA which differs from that required to create or revoke a lasting power of attorney (LPA), and particularly the issue of the donor's capacity at the time that the EPA was executed.

The common law presumption of capacity

Whilst an individual must have had capacity at the time that the EPA was created, EPAA 1985 failed to specify the capacity required to create a valid EPA so it was necessary to rely on the common law presumption of capacity. Under the common law, every person is presumed to have mental capacity until the contrary is proved. Where a person has been proved or admitted to have been so mentally disordered as to lack the capacity to make a contract or disposition, such a condition