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Registration of an Enduring Power of Attorney

{Please not that this law still applies to Enduring Powers, but as of late 2007, no new enduring powers can been created. Instead the equivalent is now a lasting power]

An Enduring power of Attorney is an extremely powerful document. Whilst such a power is in place certain rules provide protection for the person granting an Enduring Power of Attorney ('the Donor').

Initially a Donor will manage his or her own affairs and ensure that any Attorney acts properly. If a Donor becomes unable to manage their own affairs, then an Attorney has a duty to provide alternative protection.

If an Attorney has reason to believe that the Donor has become or is becoming mentally incapable, then they MUST apply to the Court of Protection for registration of the Enduring Power. Until the Enduring Power has been registered it cannot be used.

An attorney must give notice to the Donor and to certain near relatives (see table below), that they intend to register the power. The application for registration must then be made to the Public Trust Office within 10 days. The fee for this is presently 50. This fee can, in cases of hardship, be postponed until the attorney has access to the Donor's funds.

Usually three relatives must be notified. These must be taken in order of priority as set out below.

  1. The Donor's spouse.
  2. The Donor's children.
  3. The Donor's parents.
  4. The Donor's brothers and sisters, whether of the whole or half blood.
  5. The widow or widower of a child of a Donor.
  6. The Donor's grandchildren.
  7. The children of the Donor's brothers and sisters of the whole blood.
  8. The children of the Donor's brothers and sisters of the half blood.
  9. The Donor's aunts and uncles of the whole blood.
  10. The children of the Donor's uncles and aunts of the whole blood.

Notice need not be given if:

  1. The relative's address is not known or cannot reasonably be ascertained.
  2. The relative has not attained the age of 18 years.
  3. The relative is mentally incapable.

If one person in a class is notified then all members of that class must be notified.

An attorney may also be a notifiable relative if there are two others in the same class or above. If there are no other non-attorney relatives then the next relative in priority must be notified.

If there are fewer than three living relatives of the donor then this must be stated in the application.

If Attorney's act jointly then the application must be joint or the Enduring Power will not be registered and neither of the Attorney's will be able to act.

If the Attorney's act severally then any Attorney not acting in the registration must be notified. The registration is then limited to the Attorney's involved in the registration.

As always, the particular situations in which clients find themselves differ, and we are happy to advise in your particular circumstances.

Important: Please note that our law-bytes are retained for archival purposes only. The law changes, and these notes are often, now, out of date. You must take direct advice on your own personal situation and the law as it currently stands.
All information on this site is in general and summary form only. The content of any page on this site may be out of date and or incomplete, and you should not not rely directly upon it. Take direct professional legal advice which reflects your own particular situation.
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Copyright and Database Rights: David Swarbrick 2012
18 October 2013 345 18 October 2013