Registering an Enduring Power of Attorney with the Courts Service

An enduring power of attorney (EPA) is only a planning document until it is registered. Registration is the step that activates the attorney’s authority to act when the donor has lost capacity. This guide explains the registration process and its implications.

When Registration Is Required

Under the Powers of Attorney Act 1996, an EPA must be registered before the attorney can exercise the powers granted. Registration is triggered when the attorney has reason to believe that the donor is or is becoming mentally incapable.

The Assisted Decision-Making (Capacity) Act 2015 has established the Decision Support Service (DSS) which now has a role in the registration and oversight of EPAs.

The Registration Process

1. Notice: Before applying for registration, the attorney must give notice to specified persons, including the donor (if they are capable of understanding) and certain family members as set out in the Act
2. Waiting period: A prescribed period must elapse after notice is given before the application can be made, allowing interested parties to raise objections
3. Application: The attorney applies to the Courts Service (High Court Office) with the original EPA, proof of notice, and any required fee
4. Verification: The Courts Service verifies that the EPA complies with statutory requirements and that proper notice was given
5. Registration: If satisfied, the EPA is registered and the attorney can begin acting

Objections to Registration

Interested parties can object to registration on grounds including:

• The donor lacked capacity when the EPA was created
• The EPA was obtained through fraud or undue influence
• The attorney is unsuitable
• The EPA does not comply with formal requirements

If objections are raised, the court will hear them before deciding whether to register the EPA.

Effects of Registration

Once registered, the attorney has the legal authority to act on the donor’s behalf as specified in the EPA. Key effects include:

• The attorney can manage the donor’s property and financial affairs
• The attorney can make personal care decisions if the EPA so provides
• Third parties (banks, institutions) must accept the attorney’s authority
• The donor can no longer revoke the EPA without a court application

The Notice Requirements in Detail

The notice requirements under the 1996 Act are designed to protect the donor by ensuring that family members and other interested parties are aware that the EPA is about to be activated. The attorney must give notice to:

• The donor (unless they are incapable of understanding the notice)
• The donor’s spouse or civil partner (if any)
• The donor’s children (if any)
• Any co-attorney or substitute attorney named in the EPA

The notice must be in the prescribed form and must inform the recipient of their right to object to registration. The 5-week notice period gives recipients time to consider the situation and raise any concerns with the court.

Grounds for Objection

A person who receives notice of intended registration may object to the court on the following grounds:

• The EPA is not valid (e.g., it was not properly executed, or the donor lacked capacity when it was created)
• The donor has not lost or is not losing capacity
• Fraud or undue influence was used to procure the EPA
• The attorney is unsuitable to act (e.g., due to a conflict of interest, criminal history, or personal unsuitability)
• The attorney has acted or is likely to act in a manner that is not in the donor’s best interests

If an objection is filed, the court will hold a hearing at which both sides can present evidence. The court may then decide to register the EPA, refuse registration, or register it with conditions.

The Role of Medical Evidence

Registration is typically supported by medical evidence that the donor has lost or is losing capacity. While the Act does not specify exactly what medical evidence is required for registration (as distinct from the medical certificate required at the time of creation), the court will expect credible medical evidence to justify the activation of the EPA.

After Registration

The registered attorney has ongoing obligations:

• Act in the donor’s best interests
• Keep proper accounts and records
• Not benefit themselves at the donor’s expense
• Comply with any conditions in the EPA
• Report to the court or DSS if required

Frequently Asked Questions

How long does EPA registration take?

The notice period is typically 5 weeks. After that, the Courts Service processing time varies. The total process from initiating notice to completed registration can take 2–3 months.

Can an EPA be registered before the donor loses capacity?

Generally, no. Registration is triggered when the attorney has reason to believe the donor is or is becoming incapable. Premature registration would be inappropriate.

What if the EPA was created years ago?

An EPA created under the 1996 Act remains valid regardless of when it was created, provided it was properly executed. It can be registered whenever the trigger conditions are met.

Get Advice on EPA Registration

Hugh Phelan can advise on all aspects of EPA creation and registration. Contact his office at 021-489-7134 or email info@phelansolicitors.com.