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ENDURING POWERS OF ATTORNEY QUESTIONS AND ANSWERS
What is an Enduring Power of Attorney?
An Enduring Power of Attorney (EPA) is a document allowing you to appoint somebody of your choice (your Attorney) to deal with your financial affairs if you are unable to do so yourself. Unlike an Ordinary Power of Attorney, an EPA continues even if you become mentally incapable of dealing with your affairs through illness, accident or confusion.
Why do I need to make an Enduring Power of Attorney now?
Your partner or next of kin does not have automatic authority to deal with your financial affairs. You can give them permission to sign individual documents if you still have your mental capacity and can still sign, but it is important to have an Enduring Power of Attorney to cover the possibility of you becoming either physically or mentally incapable in the future.
An EPA needs to be made while you are still mentally capable of understanding the document. As none of us is capable of predicting the future it is advisable to sign an Enduring Power of Attorney to cover any future incapacity.
What happens if I dont make an Enduring Power of Attorney?
If you become mentally incapable and dont have an EPA an application needs to be made to the Court of Protection to appoint a Receiver to handle your financial affairs. The process is very time consuming and considerably more expensive than an Enduring Power of Attorney. Medical documentation and lengthy applications need to be completed and the procedure can take several months. In addition an application fee of 580 would be payable to the Court, with an annual administration fee of 250.
Receivers are required to answer to the Court on all matters and, applications need to be made for directions to make decisions relating to your financial affairs, such as sale of your house, and there is also a requirement for the Receivers to complete lengthy annual accounts.
Who can be my Attorney?
You decide who will be your Attorney. They must be:
- Over 18
- Not bankrupt
- Not lacking mental capacity themselves
The most important thing is that you have complete trust in your Attorney, due to the level of control they are able to exercise over your financial affairs.
How many Attorneys can I appoint?
You can appoint up to 4 Attorneys. We recommend that at least 2 Attorneys are appointed to cover the possibility of one of your Attorneys being unavailable. However, it is possible to just appoint one.
If you appoint more than one Attorney, your Attorneys will be appointed either:
- Jointly, in which case they must act together on every occasion. If one of the Attorneys is unable to deal with your financial affairs, for example because they have lost mental capacity themselves, or are dead, the Enduring Power of Attorney becomes invalid; or
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Jointly and separately, in which case any of your Attorneys can make decisions on your behalf and sign documents alone.
What can my Attorneys do?
Your Attorneys can do anything in relation to your finances which you are able to do yourself, unless you include a restriction on the document. This may mean they would be able to sell your house. Unless a complaint is made to the Court of Protection about your Attorneys conduct, your Attorneys actions are not supervised.
Is there anything my Attorney cannot do?
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Your Attorney cannot make or change your Will and is not entitled to see your Will unless you provide them with authority to do so.
- Your Attorney has limited authority to make gifts with your money, other than of a seasonal nature, eg birthdays, anniversaries and Christmas presents or to charities.
- Your Attorney cannot use your property for his own benefit, but he can recover his expenses. Additionally a professional Attorney, such as a solicitor or accountant, is able to charge for their services.
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If you are a trustee of a will trust or a settlement, the Attorney cannot act as a trustee in your place.
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Your Attorney cannot delegate management of your affairs to anyone else.
What happens after I have signed my Enduring Power of Attorney?
Once the EPA has been signed, it will be stored at Morgan Jones & Pett for safekeeping until it is needed. When you become incapable of dealing with your financial affairs, you or your Attorney should contact us.
If you still have mental capacity, but are physically incapable, we will provide you/your Attorney with certified copies of the Enduring Power of Attorney, these will need to be sent to financial institutions and anywhere else where the Attorneys need to prove their authority to deal with your financial affairs.
Does the Attorney own my property?
No, your money and property are still in your name. Your Attorney is acting with your authority on your behalf only.
Will I lose the right to deal with my money?
All the time that you are mentally capable of understanding your finances, then you are able to continue to deal with your finances in addition to your Attorneys.
What happens if I become mentally incapable?
Your EPA must be registered with the Court of Protection, when a registration fee of 120 will be payable. Your Attorneys should contact us at that time and we will guide them through the process.
You and your nearest relatives will be given the opportunity to object to the registration before the process is completed.
Once registered you are no longer able to deal with your own financial affairs. If you recover then the registration will be reversed.
Can my Attorney make decisions about my health?
No, if you become incapable of making your own medical decisions and want to appoint someone to do this for you, you need to make a Living Will, sometimes known as an Advanced Directive. This also needs to be made while you are still able to understand the document.
What happens if I die?
The Enduring Power of Attorney is only valid while you are still alive and ceases on death. If you have a Will, this will come into effect instead, failing which the intestacy rules which set out how your estate has to be dealt with will apply.
These notes are intended for guidance only and further legal advice should be obtained regarding your own specific circumstances. For further information please contact Law4Elderly on (0800) 174223, or email info@law4elderly.com
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