Enduring Powers of Attorney – Need to Know!

Posted on 06 Dec 2016

Did you enter into an Enduring Power of Attorney (EPA) prior to 2007? An EPA is a document in which a person signed up to 2007 before the process of appointing an attorney changed to incorporate Lasting Powers of Attorney (LPAs).

Properly executed EPAs are valid provided they still meet your wishes.

EPAs were somewhat straightforward documents to put into place because they did not need to be registered straight away. As a result, people often overlook the fact they previously made that provision.

If you are unsure whether you ever signed an EPA you should contact any Solicitor you previously instructed to prepare a Will and ask them to check what documents they hold on your behalf.

Why is locating the EPA important for you?

EPAs carry significant power. Under the document, the named attorneys have the same powers as you to control your finances and assets (subject to any added restrictions.) That power was granted to them on the date the EPA was signed and if your choice of attorney has altered since then, there is a formal process to undertake in order to remove the named attorney. So it would be a good idea to satisfy yourself you still have a good relationship with your attorneys; they have a good relationship with each other; they themselves are still capable of managing your affairs; they have never been declared bankrupt or charged with criminal activity; and that they are accessible enough to be able to take on the role fully.

Why is it important for your attorney?

Aside from attorneys needing to know they are still appointed – they also need to be clear as to what their powers and responsibilities are; whether there were any restrictions imposed on them under the EPA; whether anyone else was appointed to act with them and how multiple attorneys are permitted to act. They also need to understand the law surrounding making monetary gifts on your behalf; their duties regarding investing funds and what assets (if anything) can be given away. But perhaps most importantly ‘when should they take over control of your affairs?’

Although attorney’s powers begin from the date the EPA was signed, their powers become limited if the donor (the person granting them their powers) becomes mentally incapable of managing their own affairs. At this point, the EPA must be registered with the Court in order for the attorney to receive their full powers back. Your attorney should therefore be aware they may need to seek legal advice at the appropriate time in future to establish what constitutes mental incapacity, how it is assessed and how you would be affected with regards to making your own decisions.

– By Jennifer Powell – A solicitor based in our Tattenhall office, and a member of our a member of our Wills Trusts and Estate Department. Jennifer specialises in Private Client matters including Wills, Inheritance Tax, Lasting Powers of Attorney, Estate Administration (Probate), Trusts, Care Home Frees, Asset Protection, Court of Protection, and is also an Associate member of the Solicitors for the Elderly.