An enduring power of attorney (EPA) under
English law
English law is the common law legal system of England and Wales, comprising mainly criminal law and civil law, each branch having its own courts and procedures.
Principal elements of English law
Although the common law has, historically, be ...
is a legal authorisation to act on someone else's behalf in legal and financial matters which (unlike other kinds of
power of attorney
A power of attorney (POA) or letter of attorney is a written authorization to represent or act on another's behalf in private affairs (which may be financial or regarding health and welfare), business, or some other legal matter. The person auth ...
) can continue in force after the person granting it loses mental capacity, and so can be used to manage the affairs of people who have lost the ability to deal with their own affairs, without the need to apply to the
Court of Protection
The Court of Protection in English law is a superior court of record created under the Mental Capacity Act 2005. It has jurisdiction over the property, financial affairs and personal welfare of people who lack mental capacity to make decision ...
.
EPA's were created by the
Enduring Powers of Attorney Act 1985. It soon became apparent that the law relating to mental incapacity remained inadequate and between 1991 and 1993 the
Law Commission
A law commission, law reform commission, or law revision commission is an independent body set up by a government to conduct law reform; that is, to consider the state of laws in a jurisdiction and make recommendations or proposals for legal chang ...
published a series of consultation documents. In 1995 it published a report ''Mental Incapacity'' which recommended the abolition of EPAs, noting that they could not handle health or welfare issues and assumed that a person either had mental capacity or did not. No provision existed for a partial intervention in a person’s affairs where the person concerned had partial or fluctuating capacity.
The Law Commission proposed the introduction of Continuing Powers of Attorney (CPAs). These were subsequently enacted by the
Mental Capacity Act 2005
The Mental Capacity Act 2005 (c 9) is an Act of the Parliament of the United Kingdom applying to England and Wales. Its primary purpose is to provide a legal framework for acting and making decisions on behalf of adults who lack the capacity ...
as
Lasting Powers of Attorney (LPAs). The Mental Capacity Act 2005 came into force on 1 October 2007 and no new EPAs can now be drawn up; however, one signed before that date remains valid and may still be registered with the
Office of the Public Guardian. This is required when the donor begins to lose mental capacity.
[Mental Capacity Act 2005, Schedule 4, paragraph 4(1)] Unlike an LPA, an EPA can be used without registration for so long as the donor has mental capacity.
An EPA gives the person appointed as attorney the power to dispose of property, deal with financial affairs, sign documents and make purchases on behalf of the individual and make usual gifts. The attorney does not have the power to make substantial or unusual gifts, or make decisions about personal care and welfare.
References
External links
Direct.Gov - Enduring power of attorney, Acting as an attorneyMental IncapacityMental Capacity Act 2005, Schedule 4 English legal terminology
Power of attorney