Enduring powers of attorney

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The Mental Capacity Act 2005 (MCA 2005) introduced lasting powers of attorney (LPAs) from 1 October 2007. Enduring powers of attorney (EPAs) validly created before that date can be used and registered, provided they have not been revoked or otherwise ceased to have effect For an introduction to EPAs, see Practice Note: EPAs—introduction.

Capacity to create or revoke an EPA

An EPA will only be valid if the donor had the requisite mental capacity at the date of execution of the power. If the donor did not have the requisite capacity at the time that the EPA was created, an objection may be entered to the registration of the EPA on the ground that the power is not valid as an EPA.

Capacity is not defined in the Enduring Powers of Attorney Act 1985 (EPAA 1985) but the leading case on the degree of capacity required to create an EPA is Re K; Re F [1988] 1 All ER 358, in which it was held that the following should have been explained to the donor and that there should be evidence...

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