Statutory Instrument 1990 No. 1376

The Enduring Powers of Attorney (Prescribed Form) Regulations 1990

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© Crown Copyright 1990

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1990 No. 1376

POWERS OF ATTORNEY

The Enduring Powers of Attorney (Prescribed Form) Regulations 1990

The Lord Chancellor, in exercise of the powers conferred on him by section 2(2) of the Enduring Powers of Attorney Act 1985^[1], hereby makes the following Regulations:

Citation and commencement
    1.    These Regulations may be cited as the Enduring Powers of Attorney (Prescribed Form) Regulations 1990 and shall come into force on 31st July 1990.

Prescribed form
    2.—(1)  Subject to paragraphs (2) and (3) of this regulation and to regulation 4, an enduring power of attorney must be in the form set out in the Schedule to these Regulations and must include all the explanatory information headed "About using this form" in Part A of the Schedule and all the relevant marginal notes to Parts B and C. It may also include such additions (including paragraph numbers) or restrictions as the donor may decide.

    (2)  In completing the form of enduring power of attorney—


(a)  there shall be excluded (either by omission or deletion)—


(i)  where the donor appoints only one attorney, everything between the square brackets on the first page of Part B; and


(ii)  one and only one of any pair of alternatives;


(b)  there may also be so excluded—


(i)  the words on the second page of Part B "subject to the following restrictions and conditions", if those words do not apply;


(ii)  the attestation details for a second witness in Parts B and C if a second witness is not required; and


(iii)  any marginal notes which correspond with any words excluded under the provisions of this paragraph and the two notes numbered 1 and 2 which appear immediately under the heading to Part C.

    (3)  The form of execution by the donor or by an attorney may be adapted to provide—


(a)  for a case where the donor or an attorney signs by means of a mark; and


(b)  for the case (dealt with in regulation 3) where the enduring power of attorney is executed at the direction of the donor or of an attorney;
and the form of execution by an attorney may be adapted to provide for execution by a trust corporation.

    (4)  Subject to paragraphs (1), (2) and (3) of this regulation and to regulation 4, an enduring power of attorney which seeks to exclude any provision contained in these Regulations is not a valid enduring power of attorney.

Execution
    3.—(1)  An enduring power of attorney in the form set out in the Schedule to these Regulations shall be executed by both the donor and the attorney, although not necessarily at the same time, in the presence of a witness, but not necessarily the same witness, who shall sign the form and give his full name and address.

    (2)  The donor and an attorney shall not witness the signature of each other nor one attorney the signature of another.

    (3)  Where an enduring power of attorney is executed at the direction of the donor—


(a)  it must be signed in the presence of two witnesses who shall each sign the form and give their full names and addresses; and


(b)  a statement that the enduring power of attorney has been executed at the direction of the donor must be inserted in Part B;


(c)  it must not be signed by either an attorney or any of the witnesses to the signature of either the donor or an attorney.

    (4)  Where an enduring power of attorney is executed at the direction of an attorney—


(a)  paragraph (3)(a) above applies; and


(b)  a statement that the enduring power of attorney has been executed at the direction of the attorney must be inserted in Part C;


(c)  it must not be signed by either the donor, an attorney or any of the witnesses to the signature of either the donor or an attorney.

    4.    Where more than one attorney is appointed and they are to act jointly and severally, then at least one of the attorneys so appointed must execute the instrument for it to take effect as an enduring power of attorney, and only those attorneys who have executed the instrument shall have the functions of an attorney under an enduring power of attorney in the event of the donor's mental incapacity or of the registration of the power, whichever first occurs.

Revocation
    5.    The Enduring Powers of Attorney (Prescribed Form) Regulations 1987^[2] are hereby revoked, except that—


(a)  a power executed in the form prescribed by those Regulations and executed by the donor before 31st July 1991 shall be capable (whether or not seals are affixed to it) of being a valid enduring power of attorney;


(b)  regulation 3(3) shall apply to a power executed by the donor before 31st July 1991 under the provisions of those Regulations and the form of enduring power of attorney prescribed by those Regulations may be modified accordingly.

Mackay of Clashfern, C.

Dated 5th July 1990

[1] 1985 c. 29. back

[2] S.I. 1987/1612. back

Explanatory Note