Does the Enduring Power of Attorney You are Acting Under Need to be Registered?

Thompson Smith and Puxon’S (TSP) Wills and Estates team discusses Enduring Powers of Attorney (“EPAs”) and when they need to be registered.

An Enduring Power of Attorney (EPA”) is a legal document in which a person (known as the donor) appointed another person or people (called attorneys) to manage their property and financial affairs on their behalf. Although now superseded by a slightly different form of document (a Lasting Power of Attorney, or LPA), any EPA validly executed before 1 October 2007 and not subsequently cancelled can still take effect.

It is important to remember that, if you are an attorney acting under an EPA and you believe the donor is becoming or has already become mentally incapable of dealing with their affairs, you are under a duty to register the EPA with the Office of the Public Guardian (OPG).  I often meet with attorneys who do not realise that this is their responsibility.  In order to register the EPA, the OPG does not need medical evidence that the donor has lost capacity to deal with their own affairs, so it is the duty of the attorney to make the judgement as to whether or not the document should be registered.   There is a procedure which must be followed for registering an EPA which involves family members, in a set order of priority, being informed.

You may ask why the EPA has to be registered. The registration does not change the powers which the donor granted in the EPA. However, once registered, the donor can no longer cancel the EPA without the agreement of the court, and an attorney wishing to retire must also notify the OPG.  By registering the EPA, the attorney becomes answerable to the OPG or the court.

As an attorney it is essential that you act in accordance with the EPA so check now to make sure you are fulfilling your duties.