EPAs—introduction
EPAs—introduction

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

  • EPAs—introduction
  • Validity
  • Capacity
  • Form of power
  • Revocation
  • Defective powers
  • Registration of the enduring power of attorney
  • Notification
  • Registration

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 stick with their EPA or create a new lasting power of attorney (LPA). 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 at the time they made the EPA. It is essential that, at the time of execution, the donor understood the following key implications of the document:

  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 the donor could have done

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

  4. that if the donor

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