Before registration of an enduring power of attorney (EPA) can proceed, notice must be given to everyone requiring notice under the Mental Capacity Act 2005. To do this, use the form 'EP1 PG - Notice of intention to register an EPA'. For more information, read the article on giving notice -.
Only the attorney(s) in an EPA (or a person acting on behalf of an attorney) can register the document.
To register an EPA, a prescribed application form must be completed and sent to the Office of the Public Guardian (OPG). This application form is the 'EP2 PG - Application to register an EPA'.
You must send the 'EP2 PG - Application to register an EPA' form to the Public Guardian within 10 working days of serving the last notice.
If there is more than one attorney listed in the EPA, it is important to check how they have been appointed to act, so that you may establish whether they must all apply together to register the EPA.
Attorneys may be appointed to act in any one of the following ways:
1. Jointly – This also means 'together'. This means that all the attorneys must, at the same time and in the same EP2 PG form, apply to register the EPA. Where the attorneys have been appointed to act jointly, the EPA will fail to have any further effect in the event that one of the appointed attorneys is unable to take up or continue with his or her appointment as an attorney. This could happen if one of the attorneys dies or becomes unable or unwilling to act as an attorney. If this happens, the EPA can no longer be used.
2. Jointly and severally – This also means 'together and independently'. This means that the attorneys can act jointly, having all agreed on a particular action to be taken, or they can make decisions without consulting each other. If the attorneys are appointed like this, they do not all have to apply together to register the EPA, although they may choose to do so. However, if they do not all apply together, notice of the intention to register the EPAmust be given to any non-applying co-attorneys using form 'EP1 PG - Notice of intention to register an EPA'. The non-applying co-attorneys then have the opportunity to object to the registration. Where the attorneys have been appointed to act in this manner, there is no risk that the EPA would fail if one of the attorneys becomes unable or unwilling to act as an attorney. However, this might not present as many safeguards for the person who has created the power of attorney (the 'donor').
As soon as the attorney(s) have reason to believe that the donor is losing or has already lost his or her mental capacity, they have a duty to register the EPA with the OPG.
Unless an EPA specifies otherwise, the EPA will come into effect as soon as it is signed by the donor, along with the attorneys and witnesses.
There is a fee payable when you apply to register an EPA. The applicable fees may change annually. You should therefore always check the current applicable fee with the OPG before submitting your application.
There is also the possibility to apply to the OPG for an exemption, postponement or remission of the registration fee. Application forms for this may be obtained from the OPG website or by post.
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This article only applies to EPAs in England & Wales. For more information on other jurisdictions, see the articles about enduring powers of attorney in Northern Ireland.