Enduring powers of attorney

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

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