The following Private Client practice note provides comprehensive and up to date legal information covering:
The whole premise of an enduring power of attorney (EPA) is that, unlike an ordinary power, it can be used after the donor has ceased to have mental capacity. However, an EPA will only remain effective after the incapacity of the donor if the power is registered with the Public Guardian.
It is rare for a donor to be mentally capable on one day and mentally incapable the next, unless the incapacity is brought on by a sudden catastrophic event. In most cases, the donor will suffer a gradual deterioration in their mental faculties and the attorney should be very alert to signs of such mental deterioration because the onset of loss of mental capacity brings specific duties for the attorney in order to ensure that their authority does not lapse.
As soon as the attorney has reason to believe that the donor is becoming mentally incapable, they have specific duties to give notice of their intention to register the power to the following people:
prescribed relatives of the donor, and
the Public Guardian
In order for the attorney to fulfil these duties, they will need to establish what constitutes mental incapacity. Two definitions should be considered.
Firstly, in relation to a definition of mental incapacity (for the purposes of an EPA only) recourse can be had to legislation, which states that:
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