Enduring Powers of Attorney - Registration
If you have been appointed as an Attorney under an Enduring Power of Attorney ("EPA") there are circumstances when it may be necessary for you to register the EPA with the Office of the Public Guardian (the “OPG”)
When should an EPA be registered?
Attorneys are under a duty to register the EPA with the OPG if they believe that the person who made the EPA ("the Donor") has become or is becoming mentally incapable of managing their own affairs. It is not normally necessary for the Attorney to provide evidence of the Donor's mental incapacity before registering the EPA.
Why should an EPA be registered?
At the onset of the Donor's mental incapacity the authority of the Attorney under the EPA is suspended until the document is registered with the OPG. The Attorney must, as soon as possible, make an application to the Court to register an EPA. It is advisable not to leave it too late before registering the EPA. There are certain situations when an Attorney may be prevented from acting on the Donor's behalf unless the EPA has been registered. If you have reason to believe that it may be necessary to register the EPA then it would be advisable to do so before undertaking any of the following:
- A sale of the Donor's house or other property
- Applying for state benefits on behalf of the Donor
- Inheritance Tax or other estate planning
- Entering into a contract to provide long-term residential nursing care, or any other contract on the Donor's behalf
Failure to register the EPA may leave the Attorneys personally liable for any losses suffered by the Donor's estate.
Registering an EPA
In order to register an EPA the Attorneys must serve Notices, in the correct form, on the Donor and certain other close relatives. The application for registration is then submitted to the OPG. There are strict time limits that must be observed between the service of the Notices and submission of the application to the OPG.
Once the application has been submitted, the OPG will wait five weeks from the date the last Notice was served. This is to enable anyone upon whom Notice was served to object to the registration. There are, however, limited grounds on which individuals can object to the registration of an EPA.
Assuming that the Court receives no objections, at the end of the five-week period the OPG will return the EPA to the Attorneys. The Attorneys can then continue to use the EPA, under the authority of the OPG, to assist in the management of the Donor's financial affairs.
We are able to advise you on the circumstances when it may be necessary to register an EPA and, where relevant, assist you with the application for registration. We are also able to give advice on your duties and responsibilities as an Attorney and help in circumstances when objections to the registration of an EPA have been made.
Registering a Lasting Power of Attorney
These can be registered by the Donor before incapacity occurs. If this has not been done then the Attorneys' duty to register is the same as an EPA but the procedure can be different.
For further information please contact our team, or talk to your usual contact in the firm.