#16665 - Ep As & Lp As - Private Client

POWERS OF ATTORNEY

A way of conferring power on another to act on his/her behalf, achieved by deed,
general or limited, BUT ceases to have effect if donor loses mental capacity

Continue to be valid if donor loses mental capacity

s.13(1) Mental Capacity Act 2005: ‘he is incapable by reason of mental disorder

of managing and administering his property and affairs”

1 category only:

Property and Financial Affairs (doesn’t give authority regarding personal welfare decisions)

2 categories:

1. Property and Financial Affairs

2. Health and Welfare

1. Must be in prescribed form

2. Must contain a prescribed explanatory statement

3. Must be registered when the attorney has reason to believe the donor is becoming mentally incapable

4. Notice of registration must be served on certain relatives

1. Must be in prescribed form – LP1F, LP1H

2. Donor must choose a certificate provider

3. Execution must be in prescribed manner

4. Must be registered before it can be used – attorney has no powers until registration has been completed

5. Notice of application must be served on anyone named by the donor

2. Done must be disqualified from acting as an attorney

3. Instrument must be in prescribed form

4. Must be executed and attested

• Must select if several or jointly, otherwise EPA invalid

• An attorney cannot witness the signature of another attorney.

• Presumption attorneys appointed jointly (unless rebutted)

• An attorney can witness the signature of another attorney

• Obligation to register if the donor is or is becoming mentally incapable – until then it operates as an ordinary power of attorney

• Documents required:

  • EP2

  • EPA

  • Fee

Operative on execution

UNLESS authority postponed

Operative once registered

• Property and Financial Affairs – before and after donor has lost capacity

• Health and Welfare – only after donor has lost capacity

• Notice must be given to the donor and 3 specified relatives.

• Specified Relatives (work down this list) =

1. Spouse/civil partner

2. Children

3. Parents

4. Siblings

5. Widow/widower/surviving civil partner or deceased child

6. Grandchildren

• Power to dispense with service

• Notice must be given to any persons nominated by the donor in the LPA

• Relatives can raise objections

• Must be given before the expiry of 5 weeks of notice being served

• Must be under one of 5 specified grounds:

1. Power not valid as an EPA

2. Power no longer exists

3. Application is premature

4. Fraud/undue pressure

5. Attorney is unsuitable

• Notice of objection must be valid

• Improper use of EPA can be reported

• Can be revoked by the donor at any time when he has capacity or by the CoP if the LPA has been registered when fraud or undue pressure was used

• CoP can also direct that the LPA should not be registered

• Power to make gifts of a seasonal nature only

• Power of maintenance

• Power to make gifts on customary occasions wider than seasonal nature

• No power of maintenance