Enduring power of attorney

Enduring power of attorney

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The manner in which you object to the registration of an enduring power of attorney (EPA) in England & Wales depends upon your relationship to the EPA.

Donors

If you are the 'donor', you can object to the registration of your EPA by using form COP 8 – Application relating to EPA registration. You will be notified by a document called an 'EP1 PG notice' when your attorney(s) intend to register your EPA.

How to object

The EP1 PG notice sets out the reasons that you can use to object to the registration of the EPA. These are the only objections you can make when applying to the Court of Protection (COP). You will find these objections below under ' Objections you can use in COP 8'.

You must notify the OPG of your objection within 5 weeks of the date on which you received the EP1 PG notice. If you don't notify the OPG, there is a chance that the EPA will be registered even if you apply to the COP to object.

What happens next?

Once you submit your objections using the form COP 8 and have written to the OPG, they will suspend the registration of your EPA until the COP resolves the issue.

Attorneys

Only the attorney(s) named in the EPA can register the document. If the attorney(s) were appointed to act 'jointly' in the EPA, then they must all apply to register it. However, if the attorney(s) were appointed to act 'jointly and severally', only one of them needs to apply.

How to object

If you did not apply to register the document along with your co-attorney(s), you will be notified by the EP1 PG notice of the application to register the EPA. The EP1 PG notice sets out the grounds that you can use to object to the registration of the EPA. You will find these objections below under 'Objections you can use in COP 8'.

You must also write to the Office of the Public Guardian (OPG) within 5 weeks of the date on which you received the EP1 PG notice, to inform them of your application to the COP to object to the registration of the EPA. If you do not write to the OPG, there is a risk that the EPA will be registered nonetheless.

What happens next?

Once you submit your application and write to the OPG, they will suspend the registration of the EPA until the COP provides further instructions. The COP will contact you when your application has been issued and will provide you will further instructions.

Other person entitled to notification

How to object

The EP1 PG notice sets out the objections that you can use in your application to object to the registration of the EPA. You must also write to the OPG within 5 weeks of the date on which you received the EP1 PG notice to inform them of your application to the COP to object to the registration of the EPA. If you don't write to the OPG, there is a risk that the EPA will be registered.

What happens next?

Once you submit your application and write to the OPG, they will suspend registration of the EPA until the COP resolves the issue. The COP will contact you when your application has been issued and will provide you with further instructions.

Relative not in receipt of EP1 PG

If you are a relative entitled to notification under the Mental Capacity Act 2005 (MCA), but did not receive the EP1 PG notice, then you can still object to registration using the form COP 8 if you find out about the application through other means.

For more information, see the Notice of intention to register section.

All other applications

To begin proceedings

If you are not entitled to notice as a donor, attorney or relative and no one else has begun proceedings, you will need to use the form COP 1. You may need to apply for permission to make this application using COP 2 permission form. Check with the OPG to see if you will need permission.

There is a fee to pay if you use this method. In addition, you may need to pay for any costs you incur during proceedings and, if the court feels that you have acted unreasonably, you may need to pay the costs incurred by the other parties as well.

If you object using this form, you will also have to notify the OPG of your application to the COP. If you don't notify the OPG, there is a risk that the LPA may be registered.

If proceedings have already begun

If proceedings have already commenced in the COP, you can object by using the form COP 9.

Objections you can use in COP 8

When using the form COP 8, you can only object on one of the grounds prescribed by the MCA. These are:

  • The power of attorney is not valid as an EPA. (This would most likely be the case if the donor did not have the capacity to create an EPA.)
  • The power of attorney created by the instrument no longer exists e.g. because the donor had revoked the EPA during a period when he or she was mentally capable of doing so. (We recommend you try to obtain and supply medical evidence in support of this ground of objection and then submit it using form COP 24 - Court of Protection witness statement.)
  • The application is premature because the donor is not yet mentally incapable.
  • Fraud or undue pressure was used to induce the donor to make the power. (An allegation of fraud is a very serious matter and needs to be supported by good evidence. If the evidence is in written documents these must be submitted using COP 24 - Court of Protection witness statement.)
  • The attorney is unsuitable to be the donor's attorney. (All the circumstances and in particular the attorney's relationship to or in connection with the donor will be relevant here.)