LASTING POWER OF ATTORNEY

A Lasting Power of Attorney is a document you complete which gives somebody of your choice the power to deal with your financial affairs, if for any physical or mental reason you were unable to, this will also continue after mental incapacity.

Who needs one?

• Anyone who has assets in their sole name or owns any share in a property ...
  

• Anyone who owns any investments like Tessa's or Peps or ISA's ...
  
• Anyone who has Bank or Building Society accounts in their own name ...

You can-not complete one after the event, in the event of an accident, illness or a problem abroad:

• All your assets are frozen.
• Access to the assets are prohibited
• There will be a delay in dealing with bills sometimes running into years.
• The public Guardianship Office is the only option
• A receiver is appointed and charges are incurred which can be costly ~ £10,000 in receivership fees are not unusual.  A bond costing many £1000's may be required.  A Receiver has to keep annual accounts of financial dealings.   There are annual reviews and fees required by the court.
  
  A Lasting Power of Attorney only costs £75 plus Vat to set up and solve all of these problems!

The different types.

• A general power authorises the Attorney(s) to carry out any transactions on the donors behalf which the donor is legally able to delegate to the Attorney(s)
  
• A Specific authority enables the Attorney(s) to deal only with those aspects of the Donor’s affairs which are specified in the power. For example you can appoint an Attorney to deal with a specific Bank account.
  
• A general or specific power with restrictions and conditions authorises the Attorney(s) to deal with all the donor’s property and affairs except specified aspects; for example , the power may exclude the Attorney(s) right to sell the house in which the donor lives; or it may direct that the Attorney(s) is/are not to act until the power is registered.
  
• A Lasting Power of Attorney differs from a simple power of attorney, in so much as the lasting form, allows the attorney to run the affairs of the donor, even if the donor has been confirmed to be, or is about to become, mentally incapable of running their own affairs.  Simple powers of attorneys have to stop when a donor becomes mentally ill.  All lasting Power of Attorneys have to be registered before being used.
  

The Attorney's Duties

An Attorney, as has probably already been deduced is someone who can act on behalf of a Donor in financial matters subject to any restrictions or conditions already mentioned.  An Attorney must have attained eighteen years and not be bankrupt.

The Attorney is, within reason, able to make gifts or otherwise benefit himself or other people for whom the Donor might have been expected to make provision.  Having regard to the size of estate , the Attorney may make gifts of a seasonal nature or wedding gifts or donations to charities again for those people for whom the Donor might have been expected to make provision.

Where the Donor is a trustee then in some cases the Attorney may act in his stead but every case is different and it is therefore advisable to speak with us on such case.

Unless restriction or conditions exist the power of an Attorney can start immediately that the Lasting Power of Attorney form is signed.  Some Donor may prefer that a restriction be entered, allowing the Attorney(s) power to commence only on the Donor’s mental incapacity and subsequent registration of the Power with the Court of Protection.

Questions & Answers

A Donor is the person making the Power of Attorney.

An Attorney is the person the Donor appoints to act.

What is a Lasting Power of Attorney?

It is a Power of Attorney which, subject to conditions can still be used if the donor is becoming or has become mentally incapable of dealing with their own financial affairs.

Anybody who owns property and anyone who has assets in their sole name should make a Power of Attorney.  The older one is the more likely they are going to need somebody to help them deal with their affairs.

As soon as the Power of Attorney is needed it will need to be registered.

Do attorneys have to supply evidence of the donor's mental incapacity?

No, the attorney does not have to supply any evidence of incapacity with the application (unless the Enduring Power of Attorney contains a condition requiring this).   However, if they are in doubt they may wish to consider obtaining a medical report to satisfy themselves that registration is appropriate.

What authority does the Attorney have to manage the Donor's affairs when the application for registration has been made?

Once the application has been made, attorneys may be able rely on Section 1(2) of the Enduring Powers of Attorney Act 1985 in order to maintain the donor and to prevent loss to their estate.   If in doubt, seek legal advise.

The attorney must give notice of intention to register to the donor, and to at least three relatives of the donor.   All notices must be given using a prescribed form EP1.   The notice of intention to register must be given to the donor in person.  Notices to relatives should be sent by first class post.   The notices should all be sent within 14 days of each other.  The date of service is deemed to be the date of posting and not the date of receipt.

This is normally the case, even if it is likely that their incapacity will mean they do not understand the implications of registering.  However, if the attorney believes that it would be harmful or distressing for the donor to be given this notice, the Public Trust Office will consider dispensing with notice if evidence from a doctor is available to support this view.

If the name and/or the address of a relative is not known and cannot be reasonably ascertained, then that relative is not entitled to notice.  Clearly, it is up to the attorney to decide whether or not these details can be reasonably obtained.   If a relative is under the age of 18, or are themselves mentally incapable, they are not entitled to notice.   If there is a particular reason why an attorney does not want to notify a relative, you may apply on form EP3 to dispense with such notice.   The Court and the Public Trust Office would be most reluctant to deprive relatives of their legal entitlement to notice unless there are exceptional circumstances, but they may be willing to do so if they were satisfied that serving notice would be undesirable, impracticable or that it would serve no useful purpose.

1. The donor's spouse,
2. The donor's children (including adopted children, but not step-children),
3. The donor's parents,
4. The donor's brothers and sisters (including half- brothers and sisters),
5. The widow or widower of a child of a donor,
6. The donor's grandchildren,
7. The children of the donor's brothers and sisters (i.e. nephews and nieces of whole blood),
8. The children of the donor's brothers and sisters (i.e. nephews and nieces of the half blood),
9. The donor's aunts and uncles (but not if they are only related by marriage),
10. The children of the donor's aunts and uncles (i.e. first cousins).
If there is more than one person in a particular class of relatives entitled to receive notice, all relatives in that class must be given notice.

Yes.   For example, if the attorney is one of a donor's three children and the donor has no living spouse, only the two children who are not attorneys need to be notified.  If the spouse were still alive, they would also have to be notified.  However, if a donor has no spouse and no parents alive, and only two children who are both attorneys, but has ten brothers and sisters, all ten brothers and sisters should be notified.

If the donor does not have three relatives entitled to notice, the attorney should state this on the application form EP2 or in a covering letter.

If the attorneys want the Enduring Power of Attorney to be registered in respect of both/all of them, both/all their names must appear on the notices, forms EP1.  However, if only one of the attorneys wishes to make the application, this will be accepted provided that the other attorney(s) is/are notified of the application on form EP1.  If the notices of intention to register (forms EP1) do not name all of the attorneys, registration may be limited to only those attorney(s) whose name(s) were shown on the forms EP1 and the application form EP2.

They must all apply jointly.  If this is not possible, the Enduring Power of Attorney cannot be registered.

The original Enduring Power of Attorney, the application for registration form EP2 and payment of the £75 application fee should be sent to the Public Trust Office.  Cheques should be made payable to "Public Trust Office".  It is a good idea for attorneys to retain a copy of the Enduring Power of Attorney once it is sent for registration.

If the original Enduring Power of Attorney document has been lost, the Public Trust Office will consider registering a properly certified copy.   The certified copy must be 'certified' on each individual page, and an affidavit explaining both the circumstances surrounding the loss of the original Power, and how and when the certified copy came to be made, will be required.

The fee is normally payable out of the donor's assets.   If the donor or attorney cannot afford the fee, the attorney can ask the Public Trust Office to consider postponing or waiving payment of the fee altogether.  Such requests must be made in writing.

The Enduring Power of Attorney Team at the Public Trust Office will check the Enduring Power of Attorney and the application form.   If there are any problems or difficulties, the attorney (or their solicitors) will usually be contacted within three to four days and advised what can be done to put the problem right.   If there are no difficulties, a registration date will be set and the attorney(s), or their solicitors, will be informed of this.  This date will be 35 days from the latest date on which the notices of intention to register were sent/given.  This is because everyone who is entitled to notice, is also entitled to object to the application for registration and the Enduring Power of Attorney rules allow them time to do this.  It is not possible for registration to take place before this 35 day "waiting period" has expired.

Yes. The Enduring Power of Attorney will be stamped as being registered and will carry a registration date stamp and the seal of the Court of Protection.   The act of Registration will take place within 5 days of the due date.

It is possible for an application to be rejected if there is a technical defect with the Enduring Power of Attorney.  Attorneys may seek a review of this decision and, if they are able to supply an explanation and relevant evidence for the defect, the problem can often be overcome.   However, if after review the Enduring Power of Attorney still cannot be registered, one further option is for the attorney to consider whether the donor still has the capacity to execute another Enduring Power of Attorney.  If this course is not possible, the attorney must consider whether a full application should be made for the appointment of a Receiver or for a Direction of the Public Trustee.  

Special Note; Attorneys should not continue to use an Enduring Power of Attorney if registration has been refused.  Steps should be taken to ensure that the person dealing with the donor's affairs has the authority to do so.   If appropriate authority is not obtained, then whoever is dealing with the donor's affairs may be acting without proper legal authority.

A copy of the objection letter will usually be sent to the Attorney for comments.   The objector will be asked for evidence to support their views.  Objections are often resolved by correspondence but, in some circumstances, a hearing before the Court of Protection may be necessary.

If correspondence is received from someone who is concerned about the validity of the Enduring Power of Attorney or the suitability of the attorney, the Court of Protection may wish to make enquiries before deciding whether the Enduring Power of Attorney should be registered.   If this happens, the Attorney will be informed and given an opportunity to comment on the concerns expressed.

Applications for the registration of an Enduring Power of Attorney should be sent to the Enduring Powers of Attorney Team at the Public Trust Office.  Enquiries about registration of an Enduring Power of Attorney should also be addressed to the Enduring Powers of Attorney Team.

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