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An Attorney is under a duty to register an Enduring Power of Attorney with the Office of the Public Guardian if they have reason to believe that the Donor has lost or is losing mental capacity to manage their own financial affairs.
Some Enduring Powers of Attorney include a requirement that a report, to confirm the alleged lack of capacity, must be obtained from a medical practitioner before the document can be registered.
Who needs to be informed?
When registering an Enduring Power of Attorney a notice must be given on form EP1PG to the Donor and at least three of the Donor’s relatives. The following are the categories of relatives who must be notified, in priority order:
- Donor’s husband, wife or civil partner;
- Donor’s children (including adopted children but not stepchildren);
- Donor’s parents;
- Donor’s brothers & sisters (including half brothers and sisters);
- Widow or widower of Donor’s child;
- Donor’s grandchildren;
- Donor’s nephew and nieces;
- Donor’s aunts and uncles;
- Donor’s first cousins
Notice does not need to be given to more than three of the Donor’s relatives but in the event that there are more than three people in a category all will need to be notified.
If notifying the Donor may cause him/her upset, the Attorney can apply to the Office of the Public Guardian to dispense with this requirement.
What if I do not know the name and address of a relative?
If you do not know the name and address of a relative and it is not reasonable to find it out, the Attorney is not required to give that relative notice. Anyone relative under 18 years of age or who is mentally incapable is also not entitled to receive notice.
What if the Attorney is also a relative?
An Attorney may be counted as one of the persons entitled to receive a notice.
What if there are less than three relatives
This will need to be specified on the application form.
If there is more than one Attorney do they all need to give Notice?
It is advisable to notify all Attorneys otherwise the power conferred by the EPA may be limited by the Office of the Public Guardian to the person applying for registration.
What happens after notice has been given?
Once all the notices have been served using the form EP1PG, the application form (EP2PG) needs to be completed and forwarded to the Office of the Public Guardian together with a fee of £82 and the original EPA. The application form needs to be sent to the Office of the Public Guardian within 10 days of serving the last notice.
It is important to ensure all the details on the application form are correct as it is an offence to deliberately falsify information which may result in a fine, prison or both.
Once the Office of the Public Guardian receives the Application Form, what happens next?
The Office of the Public Guardian will check the document to ensure it is filled out correctly and if this is the case, a period of around 3 weeks will be allowed for anyone to raise any objections to the registration of the EPA.
Various grounds for objection include:
- Application is premature and it is believed the Donor is still mentally capable;
- That fraud/ undue pressure was placed on the Donor to create the power;
- The document creating the power has been revoked;
- The Attorney is unsuitable;
- The document creating the power is not valid
What happens if no objections are raised?
The Office of the Public Guardian will write to confirm the date on which the EPA is to be registered. The registered EPA will normally arrive within a week of it being registered.