 |
 |
 |
 |
 |
 |
 |
enduring power of
attorney
last updated :
Saturday, 29 September 2007
Please note that EPAs will no longer be able to be created after 30 September
2007
(this Sunday!).
They will be replaced then by the more complex
LPA - Lasting Powers of
Attorney (both new LPA forms will be over 20 pages long and
require certifying, and then registration with the Public Guardianship Office).
What is an Enduring Power of
Attorney?
A power of attorney is just a
legal device to enable other people to be able to deal with your affairs on your
behalf eg sign cheques, pay bills, . An enduring power of attorney does the same job, but it can
continue to be used (provided it is registered by the attorney) even if you
become mentally incapable of managing your own affairs or understanding who is
acting on your behalf. It is therefore quite usual to create an enduring power
of attorney (EPA) rather than a simple power as it can be used in exactly the
same way and has the added benefit of being useable should you lose your
mental capacity for whatever reason.
How do I create an EPA?
You must use a special form. The
form is in three parts - A, B and C. Part A contains guidance notes, which we have
reproduced below. Parts B & C detail who you want to act as your attorney and
what restrictions, if any, you want to place on them. It is a simple form to
complete, but it is a very powerful document and you need to think through
things carefully before completing one and giving your attorney any power over
your affairs and your property. Anyone can create an EPA provided they
understand what they are doing.
Should I create an EPA?
In our view every person should have one, even if it is not needed
immediately. You can create an EPA and simply choose to leave it with your Will,
or in some other safe place, so that it is always available should you need it
at a later date. It can only be used if the original is given to the attorney,
who would then have to produce it to others to prove that they are actually
authorised to act on your behalf. The attorney will be aware of its existence as
they have to sign the EPA too, and you will need to make them aware of where the
original is going to be kept, so that they can use it if needs be.
Who can be an attorney?
The attorney is the person (or people) that you are entrusting to deal with your
affairs, so you need to know that you can trust them implicitly to do what is
best for you, and not for themselves or others. You can allow them to do as
little or as much for you as you want. If you do not restrict the EPA in any way
then they can do anything that you can do yourself, including selling your home.
Anyone who is at least 18 can be your attorney, provided they are not bankrupt
at the time they sign the EPA form. You can appoint one or more attorneys, and
if more than one you can insist that they all act together when using the power.
-------------
The information below is the
general guidance under the Enduring Powers of
Attorney Rules and Regulations
Part A : About using this form
1. You may choose one attorney or more than one. If you choose one attorney then
you must delete everything between the square brackets on the first page of this
form. If you choose more than one, you must decide whether they are able to act:
On the first page of this form, show
what you have decided by crossing out one of the alternatives.
2. If you give your attorney(s) general power in relation to all your property
and affairs, it means that they will be able deal with your money or property
and may be able to sell your house.
3. If you don’t want your attorney(s) to have such wide powers you can include
any restrictions you like. For example you can include a restriction that your
attorney(s) must not act on your behalf until they have reason to belive that
you are becoming mentally incapable; or a restriction as to what your attorney(s)
may do. Any restrictions you choose must be written or typed where indicated on
the second page of the form.
4. If you are a trustee (and please remember that co-ownership of a home
involves trusteeship), you should seek legal advice if you want your attorney(s)
to act as a trustee on your behalf.
5. Unless you put in a restriction preventing it your attorney(s) will be able
to use any of your money or property to make any provision which you yourself
might be expected to make for their own needs or the needs of other people. Your
attorney(s) will also be able to use your money to make gifts, but only for
reasonable amounts in relation to the value of your money and property.
6. Your attorney(s) can
recover the out-of-pocket of acting as your attorney(s). If your attorney(s) are
professional people, for example, solicitors or accountants, they may be able to
charge for their professional services as well. You may wish to provide
expressly for remuneration of your attorney(s) (although if they are trustees
they may not be allowed to accept it).
7. If your attorney(s) have reason to believe that you have become or are
becoming mentally incapable of managing your affairs, your attorney(s) will have
to apply to the Court of Protection for registration of this power.
8. Before applying to the Court of Protection for registration of this power,
your attorney(s) must give written notice that that is what they are going to
do, to you and your nearest relatives as defined in the Enduring Powers of
Attorney Act 1985. You or your relatives will be able to object if you or they
disagree with registration.
9. This is a simplified explanation of what the Enduring Powers of Attorney Act
1985 and the Rules and Regulations say. If you need more guidance, you or your
advisors will need to look at the Act itself and the Rules and Regulations. The
Rules are the Court of Protection (Enduring Powers of Attorney) Rules 1986
(Statutory Instrument 1986 No. 127). The Regulations are the Enduring Powers of
Attorney (Prescribed Form) regulations 1990 (Statutory Instrument 1990 No.
1376).
10. Note to Attorney(s)
After the power has been registered you should notify the Court of Protection if
the donor dies or recovers.
11. Note to Donor
Some of these explanatory notes may not apply to the form you are using if it
has already been adapted to suit your particular requirements.
YOU CAN CANCEL THIS POWER AT ANY TIME BEFORE IT HAS TO BE REGISTERED
Accidents I Complaints I Conveyancing Quote I Divorce and Family I DIY Law I Head Injury I Employment I EPA I Law on the Phone I Law Online I Law Student I Legal Advice I Legal Basics I Legal Fun I Legal News I Links I Mediation I Medical Negligence I Motoring Law I Press I Property Dispute I Search I Solicitors I Spinal Injury I The Law Shop I Webster - Our Guide Dog I Wills and Probate I Home (Frames) I Home (No Frames)