Jurisdiction(s):
United Kingdom

Related legal acts

Key definition

Attorney definition

What does Attorney mean? In legal practice, an attorney is the person appointed by another (the donor) to act as their agent under a power of attorney. Attorneys owe fiduciary duties to act in the donor’s best interests and within the authority granted, keep records and avoid conflicts. An ordinary power ends on the donor’s loss of capacity or death; lasting/continuing/enduring powers can continue, typically on registration. England & Wales: an attorney is the donee of an ordinary power (Powers of Attorney Act 1971) or a lasting power of attorney for property and financial affairs or health and welfare (Mental Capacity Act 2005), registered with...

Capacity requirements for creating and revoking pre‑2007 Enduring Powers of Attorney: common law, key cases and court confirmation (England and Wales)

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Practice notes

Enduring powers of Attorney

Since 1 October 2007, it has no longer been possible to set up an Enduring power of attorney (EPA). This follows the repeal of the Enduring Powers of Attorney Act 1985 (EPAA 1985) by the Mental Capacity Act 2005 (MCA 2005). However, EPAs made before that date are not invalidated if the donor later loses mental capacity. Instead, they can still be relied upon by the attorneys, provided they are registered with the Office of the Public Guardian. Accordingly, earlier EPAs remain capable of operation once that formality is satisfied. Issues can still emerge about the level of capacity needed to create or revoke an EPA—which is distinct from that for a lasting Power of attorney (LPA)—and, in particular, whether the donor had capacity at the point of execution.

The common law presumption of capacity

Although the donor must have had capacity when the EPA was created, the EPAA 1985 did not define the requisite capacity to make a valid EPA. As a result, the position defaults to the common law presumption of capacity. Under that presumption, every adult is assumed to have mental capacity unless and until the opposite is proved...

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Web page updated on 27/05/2026

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