Requirements for a valid EPA
Requirements for a valid EPA

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

  • Requirements for a valid EPA
  • The donor
  • The attorney
  • The form of power

Although it is no longer possible (since 1 October 2007) to create an enduring power of attorney (EPA), those completed before that date remain available for use and it is likely to be many years before they are no longer seen. Therefore, it remains essential that their creation and operation continues to be appreciated.

A validly created EPA is not revoked by the subsequent mental incapacity of the donor. However, if and when the donor does lose mental capacity, the power will no longer be available for use unless registered.

The donor

For an EPA to be valid, it is necessary that the donor was capable of understanding the nature and effect of the EPA at the date of execution. It is not sufficient that the donor could perform the power's authorised acts at the date of execution. Rather, the donor needs to have understood:

  1. that the attorney would be able to assume complete authority over their affairs

  2. that the attorney could do anything with their property that they themselves could have done

  3. that the authority would continue if they became mentally incapable

  4. in that event the power would become irrevocable without confirmation by the court

For further information, see Practice Note: Capacity to create or revoke an enduring power of attorney.

The attorney

In order to be a valid attorney