An Enduring Power of Attorney enables a person referred to as a donor to choose an attorney(s) to manage their property and affairs. The attorney is empowered to obtain access to the donor’s bank accounts, sell the donor’s property, and make payments on the donor’s behalf. However, the attorney is not authorised to make decisions on the donor’s personal welfare, such as housing, contact, or health.
Prior to the Mental Capacity Act 2005 and its October 2007 enactment, you could appoint someone to manage your financial affairs through the use of an Enduring Power of Attorney (EPA). The EPA was superseded by the Lasting Power of Attorney on October 1, 2007. (LPA).
There are critical differences between the two documents:
EPA’s
- Must be in the legally prescribed format and signed by all parties prior to October 1, 2007.
- It isn’t possible to amend or create a new EPA, but old ones remain valid.
LPAs
- must adhere to the legally mandated format.
- Have a ‘certificate’ component that must be completed by an impartial party to ensure that you, the donor (the person who creates the LPA), understand and are not under duress.
- Can include the names of anyone the donor wishes to be notified upon the LPA’s registration. If no one is to be contacted, a second certificate provider is required.
A lasting power of attorney (LPA) is a legal document that enables you (the ‘donor’) to designate one or more individuals (referred to as ‘attorneys’) to assist you in making decisions or to make such decisions on your behalf. When you create your LPA, you must be at least 18 years old and possess mental capacity (the ability to make your own decisions).
In essence, by creating a Lasting Power of Attorney, you authorise someone you trust to act on your behalf and in your best interests while you are still alive. When you require someone to act on your behalf, it is frequently too late to acquire a Lasting Power of Attorney.
Although powers of attorney come in a variety of forms, they consistently contain two key characteristics:
- The individual appointing the attorney must execute the power of attorney document while fully capable of comprehending what they are agreeing to.
- The individual’s power of attorney terminates upon his or her death (or when specified in the document)
We examine these issues in greater detail in this article, how to revoke enduring power of attorney. We are a multidisciplinary law firm with offices in Hale, South Manchester, and London. We are easily accessible to our clients throughout the country. Each power of attorney that we create for our clients is drafted by a highly qualified and experienced solicitor.
It is possible to create your own Power of Attorney, and numerous websites make this possible. However, keep in mind that the consequences of drafting a Power of Attorney can be far-reaching, with severe consequences if done incorrectly. This is why we strongly advise you to use the services of an experienced solicitor.
Please click here to find out more about our Wills and Lasting Power of Attorney Services.
Free Initial Telephone Discussion
For a free initial discussion on how we can help you deal with the legal implications of revoking an enduring lasting power of attorney, get in touch with us today. We are also experienced in dealing with all aspects of Wills and Probate and we will review your situation and discuss the options open to you in a clear and approachable manner. Early expert legal assistance can help ensure you avoid the stress of dealing with these issues on your own. Simply call us on 0345 901 0445 or click here to make a free enquiry and a member of the team will get back to you.
How do you revoke an enduring power of attorney?
An Enduring Power of Attorney is distinguished by the fact that it is effective immediately upon execution by the donor and the attorney(s), unless explicit limits are inserted. The Enduring Power of Attorney does not require registration, like the Lasting Power of Attorney does. However, attorneys acting under an Enduring Power of Attorney are required by statute to register the document with the Office of the Public Guardian if they believe the donor is or is about to become incapable of managing their money.
Due to the fact that Enduring Powers of Attorney can be used prior to registration, donors should choose someone in whom they have complete faith. However, under certain circumstances, you may want to revoke the enduring power of attorney.
What happens if the donor still has capacity?
If the donor maintains capacity, he or she may revoke the Enduring Power of Attorney by signing a Deed of Revocation. This deed must be seen and signed, and it must be kept with the Enduring Power of Attorney.
What happens if the donor lacks capacity and the Enduring Power of Attorney is registered?
In such situations, an application to the Court of Protection will need to be submitted, requesting that the Court direct the Public Guardian to cancel the Enduring Power of Attorney’s registration and potentially appointing a deputy to manage the donor’s finances going forward. The Court of Protection may revoke an Enduring Power of Attorney for a variety of reasons, including being satisfied that the attorney is unfit to act as the donor’s attorney in light of all the prevailing circumstances.
The vast majority of cases brought before the Court of Protection concern the attorney’s “unsuitability.” The idea of unsuitability has not been defined, and case law from the last decade is used to determine what constitutes unsuitability.
What happens if the donor regains capacity after registering the Enduring Power of Attorney?
After registering an Enduring Power of Attorney (as a result of the donor becoming mentally incapable of managing their money), an application to the Court of Protection must be submitted to confirm the revocation. The act alone will not suffice. The Court of Protection will confirm the Enduring Power of Attorney’s revocation if it is convinced that the donor:
- has taken all legal steps necessary to accomplish and expressly revoke the power;
- and was mentally capable of cancelling a power of attorney at the time he did so (whether or not he is so when the Court considers the application).
Why would you need to appoint a Power of Attorney?
There are several reasons why you may require another person’s assistance in making decisions or acting on your behalf:
- This may be a temporary circumstance, such as being hospitalised and requiring assistance with daily tasks such as paying bills.
- If, for example, you have been diagnosed with dementia and will eventually lose the ability to make your own decisions, you may need to make longer-term plans.
Understanding Power of Attorney – what does “mental capacity” mean?
Mental capacity is defined as the capacity to make or communicate specific choices when the circumstances warrant it. Mental capacity requires an understanding of the situation at hand, why it is necessary, and the likely outcome of the decision.
Certain individuals will be capable of decision-making in certain situations but not in others. For instance, they may be capable of deciding what to cook for dinner but incapable of comprehending or arranging for home insurance. Alternatively, their capacity for decision-making may fluctuate on a daily basis.
Comprehending or communicating more slowly does not indicate a mental capacity deficit. Dementia, for example, does not always imply an individual’s inability to make independent choices. Where an individual has difficulty communicating a decision, every effort should be made to remove those barriers and assist the individual in making their own.
How we can help
We have a proven track-record of helping clients revoke an enduring power of attorney. We are a multidisciplinary firm and have all the expertise inhouse to satisfy the most exacting requirements of our clients. We will guide you through all the necessary legal due diligence in a comprehensive and timely manner. We firmly believe that with the right solicitors by your side, the entire process will seem more manageable and far less daunting.
How to Contact Our Wills and Probate Solicitors
It is important for you to be well informed about the issues and possible implications of revoking an enduring power of attorney. However, expert legal support is crucial in terms of ensuring your wishes are met as you would want them to be.
To speak to our Wills and Probate solicitors today, simply call us on 0345 901 0445, or click here to make a free enquiry. We are well known across the country and can assist wherever you are based. We also have offices based in Cheshire and London.
Disclaimer: This article provides general information only and does not constitute legal advice on any individual circumstances.
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