Enduring powers of attorney—introduction
Enduring powers of attorney—introduction

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

  • Enduring powers of attorney—introduction
  • Validity
  • Registration of the enduring power of attorney

The creation of an enduring power of attorney (EPA) has not been possible since 1 October 2007 but there are many still in existence, either being used or available for use.

There have been and will continue to be, occasions where clients will ask whether they should stay with their EPA or create a new lasting power. It does no harm to reiterate to the client the basis of an EPA to ensure that not only can they make this decision but to ensure that they understood and continue to understand the principles of the power.

Validity

Merely because there is an EPA it is no guarantee that the document is effective. It is necessary to look to the fundamental principles required to effect a valid document.

Capacity

Perhaps the most important principle is the capacity of the donor to make the EPA at the time they did. It is therefore essential that, at that time, the donor understood some critical effects of the document, namely:

  1. that the attorney will be able to assume complete authority over the donor's affairs

  2. if the terms of the power allow it, that the attorney will, in general, be able to do anything with the donor's property that they could have done

  3. that the authority will continue if the donor should be or becomes mentally incapable