Elderly Client Services

Making an Enduring Power of Attorney

Most people are aware of the advantages of making a Will during their lifetime so that their affairs can be wound up after their death.

Less well known are the opportunities available for people to appoint someone else in advance to manage their financial affairs and property.  This appointment can continue even if you become mentally unable to manage your affairs in the future, and is known as an Enduring Power of Attorney (EPA).

Enduring Powers of Attorney were available up to the 1st of October 2007, when they were replaced by the new Lasting Powers of Attorney (LPA). EPA’s made before this date remain valid after the change over but anyone wanting to take out a new power of attorney must do so under the new LPA rules. Please see our separate page on LPA’s.

An Enduring Power of Attorney (EPA)

An EPA is a legal process in which you hand over to someone else the power to decide what is done in relation to your financial affairs and property.  The person you appoint is known as your Attorney.  An EPA differs from an ordinary Power of Attorney, however, in that it remains valid even if you become mentally incapable of managing your affairs.  Anyone can make an EPA as long as they understand how to do so, and what it does.  The EPA is very flexible, and you may:

• Appoint more than one Attorney to act either together or separately;
• Limit the scope of their authority by, for example, requiring them to obtain the consent of another person before entering into certain transactions;
• Provide that their authority to act on your behalf only commences when you lose your mental capacity, or you may decide that they have authority to act with immediate effect;
• Decide to give them general authority to act on your behalf in relation to all your property and affairs, in which case they will be able to do everything that you can do, for example paying bills and dealing in shares or buying and selling houses;
• Revoke the EPA at any time whilst you are mentally capable.

The Attorney's duties

When you appoint an Attorney under an EPA your Attorney also signs the document and acknowledges that he or she is under a legal duty to apply to the Court of Protection and register the EPA with the Court when the Attorney believes you are, or are becoming, mentally incapable of managing your affairs.  Once the EPA has been registered you lose your power to deal with your own affairs and the Attorney takes over, but before the Court will register the EPA you have to be given written notification of the intention to register the EPA, and given the opportunity to object.  The Court will also require that certain specified relatives of yours are also notified and given the opportunity to object.

Your Attorney can use your assets for people you might have been expected to provide for, unless you place a restriction in the EPA to prevent this, and they can also make limited gifts as long as there is no restriction in the EPA preventing this.  They are not, however, able to make large gifts without the consent of the Court.

The Court

The Court which oversees the operation of EPA’s is known as the Court of Protection, which also oversees the financial affairs of people who are not mentally capable of doing so themselves, even if an EPA has not been made.  If this is the case, then the Court of Protection has power to appoint somebody to manage your affairs, known as your Receiver, but the procedure is costly and time-consuming, and, importantly, you will not have chosen who will have the responsibility of looking after your affairs.

The Court can authorise transactions that go beyond the Attorney's usual powers, but will not do so without making the fullest enquiries.

Our Role

Our role in advising you about an EPA is to ensure that you understand just what is involved, and that the EPA (which can only be made on a special form) includes such provisions as you wish to include. In addition, if the time comes we can also arrange for the EPA to be registered on behalf of your Attorney.

Finally, you may wish to appoint a solicitor or other professional adviser to be your Attorney, or one of your Attorneys if you appoint more than one. A professional Attorney is entitled to make a reasonable charge for his or her services. 

Contact us for a consultation or follow the links for more information.

Read David Coffey's newspaper article about Powers of Attorney