Enduring powers of attorney

Copyright © 2024 LexisNexis

Although the Mental Capacity Act 2005 (MCA 2005) effectively replaced the enduring power of attorney (EPA) with the lasting power of attorney (LPA), many EPAs still exist, a large number of which remain unused. They are still legal and effective documents and practitioners will need to use and register them for some time yet. For an introduction to EPAs, see Practice Note: EPAs—introduction.

Capacity to create or revoke an EPA

An EPA will only be valid if the donor had the requisite mental capacity at the date of execution of the power. If the donor did not have the requisite capacity at the time that the EPA was created, an objection may be entered to the registration of the EPA on the ground that the power is not valid as an EPA.

Capacity is not defined in the Enduring Powers of Attorney Act 1985 (EPAA 1985) but the leading case on the degree of capacity required to create an EPA is Re K; Re F [1988] 1 All ER 358, in which it was held that the following should

To view the latest version of this document and thousands of others like it, sign-in with LexisNexis or register for a free trial.

Existing user? Sign-in TAKE A FREE TRIAL
Powered by Lexis+®
Latest Private Client News

Private Client weekly highlights—21 November 2024

This week’s edition of Private Client highlights includes: (1) Wigglesworth v Beetson, in which the claimant failed in an action for estoppel and adverse possession; (2) the Hansard Society to host a briefing on parliamentary process for Assisted Dying Bill; (3) Khan v Khan, which considered family property and constructive trusts; (4) analysis of the Autumn Budget announcement to bring unused pension funds and death benefits within the scope of IHT; (5) Palmer v Sans, which found that there was no transaction at an undervalue where property was already held on trust for the transferee; (6) KA v FA (The Secretary of State for the Home Department intervening), where the court recognised an overseas adoption notwithstanding failure of common law test; and (7) Kireeva v Bedzhamov, in which the Supreme Court has confirmed the application of the immovables rule to English property.

Privy Council rules BVI company shares are not immovable property (Al Thani v Al Thani)

Private Client analysis: In a decision which will come as a relief to private individuals who own shares in BVI companies, the Privy Council has decided that section 245 of the BVI’s Business Companies Act 2004 does not have the effect of re-categorising shares as immovable property for the purposes of succession. Written by Kyle Bonnell, pupil at XXIV Old Buildings.

Supreme Court confirms application of immovables rule to English property

The Supreme Court has unanimously dismissed Ms Kireeva’s (Russian bankruptcy trustee’s) appeal to overturn the Court of Appeal’s’ decision regarding matters arising out of the bankruptcy of Mr Bedzhamov. Peter Declercq and Patrick Elliot, partners at DCQ Legal (who acted for Ms Kireeva), discuss the implications of the judgment.

UT finds FTT made errors when setting aside HMRC best judgment assessment (HMRC v Sintra Global)

Tax analysis: In Sintra Global, the Upper Tribunal (UT) set aside the decision of the First-tier Tax Tribunal (FTT) insofar as it related to a notice HMRC had issued to an individual making him liable for the payment of a civil evasion penalty charged against a company he was a director of. The UT found that the FTT had failed to follow the guidance provided by the Court of Appeal in Pegasus Birds in relation to the assessment the penalty was based on.

View Private Client by content type :  
News
Practice notes
Precedents
Q&As

Popular documents

Does an attorney have a right to bring a court action on behalf of the donor under an enduring power of

Does an attorney have a right to bring a court action on behalf of the donor under an enduring power of attorney?Enduring powers of attorney (EPA), as opposed to lasting powers of attorney, are becoming increasingly rare. The prescribed form of EPA gives the donor of the power the option to give the

LPAs—people to notify and certificate providers

LPAs—people to notify and certificate providersFORTHCOMING CHANGE: Further to the Government's response to the Ministry of Justice’s and Office of the Public Guardian (OPG)’s consultation Modernising Lasting Powers of Attorney, the Powers of Attorney Bill received Royal Assent on 18 September 2023,

Can a bankrupt individual be appointed as an attorney pursuant to a power of attorney? Does it make a

Can a bankrupt individual be appointed as an attorney pursuant to a power of attorney? Does it make a difference if they are a discharged or undischarged bankrupt?As this Q&A has not specified the power of attorney we have considered both ordinary powers of attorney and lasting powers of attorney

Can a power of attorney lapse or expire or does it last indefinitely? Does it need to be updated or

Can a power of attorney lapse or expire or does it last indefinitely? Does it need to be updated or 'refreshed'?Lasting powers of attorneyIn contrast to an ordinary power of attorney, the authority conveyed by a lasting power of attorney (LPA) does not terminate on the incapacity of the donor. Once
Does an attorney have a right to bring a court action on behalf of the donor under an enduring power of

Does an attorney have a right to bring a court action on behalf of the donor under an enduring power of

Does an attorney have a right to bring a court action on behalf of the donor under an enduring power of attorney?Enduring powers of attorney (EPA), as opposed to lasting powers of attorney, are becoming increasingly rare. The prescribed form of EPA gives the donor of the power the option to give the

LPAs—people to notify and certificate providers

LPAs—people to notify and certificate providers

LPAs—people to notify and certificate providersFORTHCOMING CHANGE: Further to the Government's response to the Ministry of Justice’s and Office of the Public Guardian (OPG)’s consultation Modernising Lasting Powers of Attorney, the Powers of Attorney Bill received Royal Assent on 18 September 2023,

Can a bankrupt individual be appointed as an attorney pursuant to a power of attorney? Does it make a

Can a bankrupt individual be appointed as an attorney pursuant to a power of attorney? Does it make a

Can a bankrupt individual be appointed as an attorney pursuant to a power of attorney? Does it make a difference if they are a discharged or undischarged bankrupt?As this Q&A has not specified the power of attorney we have considered both ordinary powers of attorney and lasting powers of attorney

Can a power of attorney lapse or expire or does it last indefinitely? Does it need to be updated or

Can a power of attorney lapse or expire or does it last indefinitely? Does it need to be updated or

Can a power of attorney lapse or expire or does it last indefinitely? Does it need to be updated or 'refreshed'?Lasting powers of attorneyIn contrast to an ordinary power of attorney, the authority conveyed by a lasting power of attorney (LPA) does not terminate on the incapacity of the donor. Once